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The brief was filed Friday in United States v. Windsor, a case challenging Section 3 of the Defense of Marriage Act, or DOMA, the law that legally declares marriage to be only between a man and a woman. That section allows state and federal authorities to deny benefits to same-sex couples that are commonplace for heterosexual couples, like insurance for government workers and Social Security survivors' benefits.
Oral arguments are scheduled for March 27.
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In its brief (.pdf), the U.S. bluntly declares: "Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection.
"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," said the brief, which was signed by Solicitor General Donald Verrilli, the government's chief trial lawyer. "Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional."
In a footnote, the brief mentions California's Proposition 8 and similar measures in other states as evidence that anti-gay discrimination remains a major problem.
In effect, the U.S. is asking the court to change DOMA to set a higher bar for courts to approve laws that discriminate against gay men and lesbians, Lyle Denniston, a Supreme Court expert, wrote on the influential ScotusBlog.
President Barack Obama announced in 2011 that the U.S. would no longer enforce DOMA, but "this is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court," Denniston writes. "The court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this term."