Specifically, Windsor argues laws like DOMA that classify people based on their sexual orientation should be subjected to "heightened scrutiny" by courts, which demands the government to provide an "important" reason for the law in question. A similar argument was made by the Obama administration in a filing last Friday.
In discussing the standards that courts use when determining whether heightened scrutiny should apply, Windsor argues that gays and lesbians have faced a history of discrimination, and that their being gay does not affect their ability to contribute to society. Additionally, she argues that sexual orientation is not, generally speaking, fluid, and that the group "lacks political power" because of prejudice…
…Quoting from the Obama administration's Friday filing, Windsor then notes, "At oral argument before the court of appeals, 'BLAG's counsel all but conceded,' that its [given] justifications for DOMA could 'not withstand intermediate scrutiny.'"
Even if the court does not choose to apply such heightened scrutiny to DOMA, Windsor maintains the law still should be struck down as unconstitutional. The lawyers put forward three areas where the Supreme Court has struck down laws under the lowest form of scrutiny, called rational basis review: when the purpose of the law is to harm a targeted group; when a law subjects such a group to broad disadvantages for no legitimate reason; and when laws are not the type of laws the federal government generally passes.
Windsor then stated that "DOMA raises all three of these red flags" — noting the "language of panic and fear" in the legislative debate over DOMA, DOMA's "uniquely broad scope," and DOMA's "unprecedented intrusion into an area of traditional state regulation."
Read the full brief, AFTER THE JUMP…
And Chris Geidner's full report here.