On August 2, 2012 an amicus brief was filed on behalf of CLDEF in the case of Bipartisan Legal Advisory Group of the United States House of Representatives v. Nancy Gill, et al. in the United States Supreme Court in support of petitioner’s petition for writ of certiorari.
Our amicus brief argues that the petition for a writ of certiorari should be granted, but not limited to petitioner’s two questions, both of which rest upon the assumption that the Fifth Amendment’s Due Process Clause imposes an “equal protection” limit on the exercise of Congress’s Taxing and Spending Powers. Our amicus brief urges the Supreme Court to add to the questions to be addressed whether section 3 of the Defense of Marriage Act (“DOMA”) violates the Fifth Amendment Due Process guarantee as it is written, not as it has been construed by the Supreme Court.
Additionally our brief urges the Supreme Court if not persuaded by the textual argument, that it 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 the Supreme Court’s decisions and the decision of the court below. Unmoored from the constitutional text, the Supreme 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.