Without getting into all the complexities of constitutional doctrine, this approach establishes the longstanding state role, the historical discrimination against gays, and DOMAs' quick passage with little legislative discussion of rationale -- all of which may well give Justice Kennedy a way to deal with this case. In doing so, he may be able to show his sympathies for same-sex marriage without adopting the most stringent constitutional review -- "strict scrutiny" -- which would invalidate virtually all state restrictions on same-sex marriage.
- DOMA undermines the core of the U.S. military's mission and culture, which is founded on family support for military personnel. A brief filed by former Secretaries of Defense, other senior national security officials, and military commanders makes a powerful argument: The military's leadership long ago concluded that supporting service members' families is central to tactical effectiveness and strategic strength.
Following the repeal of "Don't Ask, Don't Tell," says the brief, "if the military is unable to give effect to marriages that are legal under state law, it will undermine the military's morale, readiness, cohesion, and effectiveness. It will also undermine the military's significant efforts, particularly since the repeal of DADT, to recruit and retain gay and lesbian individuals to ensure that service members are drawn from the full pool of the best and brightest candidates."
By denying married same-sex partners numerous benefits, including healthcare, equal pay, educational assistance, and survivorship benefits, DOMA's discrimination is, the brief argues, at odds with the core morale and mission of the military.
This brief is important because it presents the Court with a powerful national security argument: A Congressional Act that vitiates, without justification, long-standing military principles and military practices through discrimination against those lawfully married under state law should be declared unconstitutional.
- DOMA injures core interests of employers and employees. Briefs from more than 275 major businesses, business associations, and professional entities, and from organized labor, argue that DOMA injures business and labor and has no justification in states that recognize same-sex marriages.
For a conservative Court, the employer brief -- with its large number of prominent corporate signatories such as Apple, Aetna, Cisco, Citigroup, Exelon, Morgan Stanley, Pfizer, and Walt Disney -- may carry weight. It argues that DOMA's effect in states with lawful gay marriage undercuts the fundamental tenet of workplace fairness: It imposes a compliance burden that doesn't achieve a social good like clean air but instead advances unfair discrimination. It impairs employer-employee relationships for key workers. And, ultimately, it requires actions that are contrary to the central corporate mission of attracting, retaining, and promoting the most talented work force possible.