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January 22, 2013

House Republicans submit brief in DOMA case

The so-called Bipartisan Legal Advisory Group, or BLAG, which was created by House Republicans to defend DOMA after President Obama's Department of Justice declared the law unconstitutional and refused to defend it, has filed its brief in United States v. Windsor, the DOMA case from the Second Circuit that is scheduled for oral arguments in the Supreme Court in late March.

Lyle Denniston reports at SCOTUSblog. Chris Geidner reports at BuzzFeed.

My initial reaction based on a quick scan, and on the descriptions by Geidner and Denniston, is that this is all well-trod ground and our advocates will do a solid job of refuting it.

Here's my interested layman's comment on one much-disputed and central point: Do we have to be abjectly helpless, like Miss Gish on an ice floe approaching the falls, in order to gain heightened scrutiny under the 14th Amendment Equal Protection Clause? If so, then by seeking it in any kind of serious way we prove ourselves unworthy of it. That sounds like a Catch-22 to me (which may nonetheless pass constitutional muster; I'm just saying).

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