The Windsor case involved the federal Defense of Marriage Act — a federal law defining marriage as between one man and one woman for purposes of federal law. The case also addressed the standing of the Bipartisan Legal Advisory Group — representing the House of Representatives — to defend that statute in federal court after the Obama administration refused to do so.
CLDEF’s amicus curiae brief argued that if the President will not “take care” that the laws be “faithfully executed” — including defending their constitutionality — then he has the unilateral authority to decide upon their constitutionality. Our brief on the merits argued that Congress must define who should receive and not receive federal benefits, or otherwise it will be left up to the states and their varying definitions of marriage to define the scope of federal law. Moreover, the brief noted that the Fifth Amendment (applicable to Congress) does not have the same “equal protection clause” as does the Fourteenth Amendment (applicable to the states), and it is not up to the courts to “read in” an “equal protection component” to restrict the power of Congress.
On June 26, 2013, in an opinion written by Justice Kennedy, the Supreme Court struck down DOMA by a vote of 5-4. Ignoring the Constitution, the Supreme Court decided that the federal definition of marriage violated the Fifth Amendment’s Due Process Clause — ignoring the fact that there is no equal protection provision in the Fifth Amendment. The Supreme Court ruled that the federal government was required to recognize same-sex marriages which were legal in certain states.
CLDEF Amicus Curiae Brief on the Merits (January 29, 2013)
CLDEF Amicus Curiae Brief on Jurisdiction and Standing (March 1, 2013)