Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

• In a judgment issued just this past Tuesday, in a matter involving same-sex civil partners, Germany’s Constitutional Court ruled that a refusal to permit one partner to adopt a child who had already been adopted by the other partner violated Article 3(1) of the country’s Grundgesetz, or Basic Law, which guarantees that all persons shall be equal before the law. The ruling’s expected to push Germany toward further expansions of rights.
• Early this month, by a margin of 400 to 175, Britain’s House of Commons passed voted in favor of moving to 2d reading the Marriage (Same-Sex Couples) Bill.
• A bill to legalize same-sex marriage and adoption passed France’s National Assembly by a vote of 329 to 229 in mid-February. Entitled Projet de loi ouvrant le marriage aux couples homosexuels, the bill’s anticipated to pass the French Senate in April.

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.