WASHINGTON The issue of gay marriage has officially been appealed to the U.S. Supreme Court in a move that could lead to a landmark ruling.
On Friday (June 29) lawyers for the House of Representatives filed an appeal with the Supreme Court, asking it to take up a case concerning the constitutionality of a major section of the Defense of Marriage Act, a 1996 federal law which defines marriage as being between one man and one woman.
Because the court is in its summer recess, attorneys may not know for weeks or months whether the Supreme Court will hear it.
The appeal comes after the First Circuit Court of Appeals in May overturned DOMA Section 3, saying it violated the U.S. Constitution's guarantee of equal protection. Section 3 of DOMA defines marriage in federal law in the traditional sense.
Massachusetts and the gay legal group GLAAD filed the suits that led to the First Circuit ruling, arguing it's wrong for the federal government not to recognize the gay marriages from states where it's legal and, by extension, not to grant federal benefits to the couples.
But the Bipartisan Legal Advisory Group (BLAG) the House's attorneys said the federal government has legitimate reasons to define marriage as between a man and a woman. It also said the federal government is a sovereign body just like each state that has the power, like Massachusetts, to define marriage as it chooses.
"Section 3 of DOMA simply asserts the federal government's right as a
separate sovereign to provide its own definition which 'governs only federal programs and funding,'" the House attorneys wrote in the request. "Congress, of course, did not invent the meanings of 'marriage' and 'spouse' in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant and what courts and the executive branch have always understood it to mean."
Unless the First Circuit's ruling is reversed, the United States would join 11 countries around the world that recognize gay marriage, even though it's legal only in six states and the District of Columbia.
The 35-page House request notes that DOMA passed with bipartisan support and was signed by President Clinton, and it quotes from both Democrats and Republicans who backed it.
Significantly, the request argues that heterosexual relationships are unique and that children need a mother and father arguments that the Obama administration had avoided even when it was defending the law.
Congress, the request says, believes it has a "deep and abiding interest in encouraging responsible procreation and child-rearing."
"Congress recognized the basic biological fact that only a man and a woman can beget a child together without external assistance, and sought to encourage children to be raised by both their biological parents," the request says.
The request even quoted an 1885 Supreme Court decision that had said marriage between a man and woman was the "sure foundation of all that is stable and noble in our civilization."
Four district courts have found DOMA constitutional, four have found it unconstitutional, the request said.
"This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process," the House attorneys wrote.
Technically, the DOMA suit being appealed to the high court would not impact states' rights to determine their own marriage laws. However, a separate lawsuit out of California the high-profile Proposition 8 case could directly affect states. A Ninth Circuit panel overturned Prop 8, and that decision is expected to be appealed to the Supreme Court. If the Supreme Court takes the Prop 8 case, then it probably would determine the constitutionality of the laws in the 44 states that don't recognize gay marriage.
Former Solicitor General Paul Clement is the lead attorney for the Bipartisan Legal Advisory Group.