A request is pending from members of Congress before the U.S. Supreme Court to review – and overturn – a decision from the 1st Circuit Court of Appeals that declared the Defense of Marriage Act unconstitutional.

It cites the “previously unknown standard of equal protection review” applied by the court and questions whether there is any conflict with the “equal protection component of the Due Process Clause of the Fifth Amendment.”

But now an amicus brief has been filed by attorneys represented a long list of interested parties that suggests the Supreme Court justices simply should return to the Constitution, read its words, and apply them to the case.

Those represented in the amicus brief say they are confident if that happens, the DOMA will be affirmed as constitutional.

“Amici urge this court to grant the petition to review whether its various balancing tests, including strict scrutiny, intermediate scrutiny, and rational basis, are wholly unsuitable to the task of objective judicial review, as demonstrated by an illustrative review of this court’s decisions and the decision of the court below,” the petition says.

“Unmoored from the constitutional text, this court’s tests have been, and if not abandoned will continue to be, used inconsistently by unelected judges in the unchecked exercise of raw legislative power.”

In the case at hand, the Boston-based 1st Circuit ruled the DOMA unconstitutional. The law denies same-sex duos federal benefits enjoyed by married couples, such as the ability to file joint federal tax returns and survivor benefits, as Congress intended.

That intermediate court opinion noted, “[T]he denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

A few weeks ago, former U.S. Solicitor General Paul Clement, acting on behalf of members of Congress when Barack Obama and his Department of Justice refused to perform their duties and defend the federal law in challenges, filed a petition to the high court for review of the 1st Circuit decision.

“Section 3 of the Defense of Marriage Act provides that for purposes of federal law ‘the word ‘marriage’ means only a legal union between one man and one woman as husband and wife…”

The issue, the petition explains, is whether DOMA “violates the equal protection component of the Due Process Clause of the Fifth Amendment” and “whether the court below erred by inventing and applying … a previously unknown standard of equal protection review.”

The case notes that the law was adopted in the 1990s in response to a legal maneuver in Hawaii trying to force recognition of same-sex marriages. It was intended to define for federal purposes a marriage as between a man and a woman, no matter what states might define.

“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 the courts and the executive branch have always understood it to mean – in using those words: a traditional male-female couple.”

Now attorneys Herbert W. Titus, and others from the William J. Olson law firm, as well as Gary Kreep of the U.S. Justice Foundation have submitted a brief on behalf of the Capitol Hill Prayer Alert Foundation, the U.S. Justice Foundation, Citizens United, Citizens United Foundation, Young America’s Foundation, Public Associate of the U.S., Institute on the Constitution, Lincoln Institute for Research and Education, Gun Owners Foundation, Conservative Legal Defense and Education Fund, Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, Abraham Lincoln Foundation for Public Policy Research, Protect Marriage Maryland and Declaration Alliance.

The brief says the question before the Supreme Court is simpler than expected.

The “equal protection” element of the Fifth Amendment is assumed, and a simple reading of the Constitution confirms that, they say.

“This court should examine Section 3 of DOMA to determine if it conforms to the United States Constitution, not just whether it conforms to its own precedents.”

After all, said the brief, “Article VI of the Constitution states that ‘the laws of the United States which shall be made in pursuance’ of the Constitution – not in pursuance of this court’s judicial opinions – [are] ‘the supreme Law of the Land.'”

“If this court is governed only by its own precedents, or by its ‘own explanations,’ then the oath of office is truly a ‘solemn mockery,’ the justices having sworn to decide cases according to their own opinions,” the pleading said.

It said the lower court decisions are based “upon the unstated assumption that the ‘equal protection component’ of the Fifth Amendment is identical to the equal protection guarantee of the Fourteenth Amendment.”

But the Constitution does not necessarily support that idea.

“This court’s equal protection doctrine, insofar as it rests upon the Fifth Amendment due process clause, has been developed in flagrant disregard of a well-established rule of construction dating back to at least 1840: ‘In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instruction, that no word was unnecessarily used, or needlessly added.'”

The argument explained if the Fifth Amendment due process is identical to that in the 14th, then the 14th was “needlessly added.”

The pleading noted that the court uses various tiers of scrutiny, but “significantly, none of these guidelines is derived from any constitutional text, but rather are fact-specific, having the effect, if not the design, of maximizing the court’s discretion.”

“The time has come for this court to abandon its ‘standards of review’ and return to the constitutional text,” the amici argue.


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