Pottinger, Stanley, undated - 1 of 1

    No. 12-307

In The

Supreme Court of tfje ©mteti States

United States of America,
Petitioner,

v.
EDITH Schlain W indsor, in her capacity as Executor 

of the estate of Thea CLARA Spyer, et a l .,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENT WINDSOR 
(Equal Protection Guarantee)

Sherrilyn Ifill 
Director- Counsel 

Elise C. Boddie 
Counsel of Record 

Rachel M. Kleinman 
Ria Tabacco Mar 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street,

16th Floor
New York, NY 10013 
(212) 965-2200 
eboddie@naacpldf.org

JOSHUA ClVIN 
NAACP Legal Defense 

& Educational Fund, Inc. 
1444 I Street, NW,

10th Floor
Washington, DC 20005

mailto:eboddie@naacpldf.org


1

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES.........................................ii
INTEREST OF AMICUS............................................. 1
SUMMARY OF THE ARGUMENT.............................2
ARGUMENT.................................................................4
I. An essential function of equal protection law

is to guard against government action that 
subordinates historically marginalized 
groups.......................................................................4
A. The antisubordination principle devel­

oped as a tool to expose and invalidate 
the legacy of America’s racial caste sys­
tem....................................................................... 5

B. The antisubordination principle helped
to cabin the expansion of heightened 
scrutiny.............................................................10

II. The role of the courts is to safeguard the
rights of historically subordinated groups by 
applying heightened scrutiny to laws, like 
DOMA, that disadvantage them as a class........ 13

CONCLUSION............................................................16



11

TABLE OF AUTHORITIES

Cases

Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 
(1995).......................................................................... 10

Anderson v. King County, 138 P.3d 963 (Wash.
2006)........................................................................... 13

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)................... 14
Bolling v. Sharpe, 347 U.S. 497 (1954).........................9
Brown v. Board of Education, 347 U.S. 483 

(1954)...............................................................  1, 5, 6, 9
Califano v. Webster, 430 U.S. 313 (1977)......................9
Conaway v. Deane, 932 A.2d 571 (Md. 2007).........  1, 13
Craig v. Boren, 429 U.S. 190 (1976)................................. 3
Frontiero v. Richardson, 411 U.S. 677 (1973)......  13, 15
Hernandez u. Robles, 855 N.E.2d 1 (N.Y. 2006).......... 1
Hernandez v. Texas, 347 U.S. 475 (1954)...............  7, 10
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).......... 1
Lawrence v. Texas, 539 U.S. 558 (2003)....................... 12
Loving v. Virginia, 388 U.S. 1 (1967).................. 2, 8, 15
McLaughlin v. Florida, 379 U.S. 184 (1964)........ 1, 7-8
McLaurin v. Oklahoma State Regents for Higher 

Education, 339 U.S. 637 (1950).............................  1, 5
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 

(1938)........................................................................ 1, 5
Nixon v. Condon, 286 U.S. 73 (1932)..........................  14
Oyama v. California, 332 U.S. 633 (1948)....................2



Ill

Parents Involved in Community Schools v. 
Seattle School District No. 1, 551 U.S. 701 
(2007).............................................................................3

Pedersen v. Office of Personnel Management, 881 
F. Supp. 2d 294 (D. Conn. 2012)..............................11

Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.
2010) .................................................................................... 1

Plessy v. Ferguson, 163 U.S. 537 (1896)...........  5, 14, 15
Romer v. Evans, 517 U.S. 620 (1996)................  1, 11-12
Sipuel v. Board of Regents of the University of 

Oklahoma, 332 U.S. 631 (1948)............................. 1, 5
Skinner v. Oklahoma ex rel. Williamson, 318 

U.S. 535 (1942)............................................................. 8
Strauder v. West Virginia, 100 U.S. 303 (1880)........... 7
Strauss v. Horton, 207 P.3d 48 (Cal. 2009).....................1
Sweatt v. Painter, 339 U.S. 629 (1950).................. 1, 5-6
United States v. Carotene Products Co., 304 U.S.

144 (1938)............................................................  10, 14
United States v. Paradise, 480 U.S. 149 (1987)........... 10
United States v. Virginia, 518 U.S. 515 

(1996)............................................................... 2, 3, 5, 9

Statutes

Defense of Marriage Act, Pub. L. No. 104-199,
§ 3(a), 110 Stat. 2419 (1996) (codified at 1 
U.S.C. § 7).............................................................. 4, 11

Legislative Materials

H.R. Rep. No. 104-664 (1996) 14



IV

Other Authorities

Jane S. Schacter, Ely at the Altar: Political 
Process Theory Through the Lens of the 
Marriage Debate, 109 Mich. L. Rev. 1363 
(2011)..........................................................................13

Reva B. Siegel, Equality Talk-' Antisubordination 
and Anticlassification Values in Constitutional 
Struggles over Brown, 117 Harv. L. Rev. 1470 
(2004).......................................................................... 3



1

INTEREST OF AMICUS1
The NAACP Legal Defense and Educational 

Fund, Inc. (LDF) is a non-profit legal organization 
that for more than seven decades has fought to en­
force the guarantees of the United States Constitu­
tion against discrimination. See, e.g., Brown v. Bd. 
of Educ., 347 U.S. 483 (1954); McLaurin v. Okla. 
State Regents for Higher Educ., 339 U.S. 637 (1950); 
Sweatt v. Painter, 339 U.S. 629 (1950); Sipuel v. Bd. 
of Regents of Univ. of Okla., 332 U.S. 631 (1948); 
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 
(1938). LDF has sought to eradicate barriers to the 
full and equal enjoyment of social and political 
rights, including in the context of partner or spousal 
relationships, see, e.g., McLaughlin v. Florida, 379 
U.S. 184 (1964), and has participated as amicus cu­
riae in cases across the nation that affect the rights 
of gay people, including Romer v. Evans, 517 U.S. 
620 (1996); Perry v. Schwarzenegger, 591 F.3d 1147 
(9th Cir. 2010); Strauss v. Horton, 207 P.3d 48 (Cal. 
2009); In re Marriage Cases, 183 P.3d 384 (Cal. 
2008); Conaway v. Deane, 932 A.2d 571 (Md. 2007); 
and Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).

Consistent with its opposition to all forms of dis­
crimination, LDF has a strong interest in the fair 
application of the Fifth and Fourteenth Amendments 
to the United States Constitution, which provide im­
portant protections for all Americans, and submits

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amicus, its members, or 
its counsel made a monetary contribution to the preparation or 
submission of this brief. This brief is filed with the consent of 
all parties.



2

that its experience and knowledge will assist the 
Court in this case.

SUMMARY OF THE ARGUMENT

To safeguard our Constitution’s guarantee of 
equal protection, it is well-settled that courts should 
apply a more rigorous standard of review to govern­
ment classifications that categorically exclude indi­
viduals from equal participation in our country’s so­
cial and political community based solely on their 
status as members of a certain group. In determin­
ing the type of group-based classifications that trig­
ger such “heightened scrutiny,” this Court has fo­
cused on the need to guard against government ac­
tion that intentionally relegates individual members 
of historically subordinated groups to an inferior so­
cial status. See, e.g., Loving v. Virginia, 388 U.S. 1, 
9 (1967). It is for that reason that the government 
bears a “heavy burden” in justifying such laws. See 
id.

Over time, this Court has expanded the applica­
tion of heightened scrutiny to various groups for dif­
ferent reasons. In addition to classifications based 
on race, see id. at 11, the Court has applied height­
ened scrutiny to laws that discriminate on the basis 
of, among other things, national origin, see Oyama v. 
California, 332 U.S. 633, 646 (1948), and sex, see 
United States v. Virginia (VM1), 518 U.S. 515 (1996). 
This expansion of heightened scrutiny has been es­
sential to our forward progress as a nation in elimi­
nating entrenched discrimination. In an analogous 
context, Justice Kennedy has written:

Our Nation from the inception has
sought to preserve and expand the



3

promise of liberty and equality on which 
it was founded. Today we enjoy a soci­
ety that is remarkable in its openness 
and opportunity. Yet our tradition is to 
go beyond present achievements, how­
ever significant, and to recognize and 
confront the flaws and injustices that 
remain.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. 
No. 1, 551 U.S. 701, 787 (2007) (Kennedy, J., concur­
ring in part and concurring in the judgment). This 
case provides an important opportunity to continue 
our nation’s tradition of rooting out injustices that 
inhibit equal opportunity for all Americans.

Expansion of heightened scrutiny has always in­
volved a careful and deliberative analysis that fo­
cuses at least in part on whether the particular clas­
sification is predicated upon “social stereotypes,” 
Craig v. Boren, 429 U.S. 190, 202 n.14 (1976), and/or 
“create [s] or perpetuate[s] the legal, social, and eco­
nomic inferiority” of a group that has been subjected 
to sustained discrimination, VMI, 518 U.S. at 534. 
This rationale for heightened scrutiny has become 
known as the “antisubordination” principle.2

LDF writes separately in this case for two rea­
sons. First, LDF wishes to emphasize that this anti­
subordination principle—which has always provided 
a critical justification for the role that heightened 
scrutiny plays in enforcing the Constitution’s guar­
antee of equal protection—should apply with the

2 See generally Reva B. Siegel, Equality Talk: Antisubordi­
nation and Anticlassification Values in Constitutional Strug­
gles over Brown, 117 Harv. L. Rev. 1470 (2004).



4

same force against laws that unquestionably subor­
dinate gays and lesbians, including the Defense of 
Marriage Act (DOMA). See Defense of Marriage Act, 
Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 (1996) 
(codified at 1 U.S.C. § 7). This federal statute was 
explicitly fashioned to ensure that legally married 
gay and lesbian couples would not be afforded the 
same status and benefits of federal law as hetero­
sexual married couples.

Second, LDF writes separately to underscore that 
the judiciary has a distinctive role to play in rooting 
out the pernicious stereotypes that motivate laws 
like DOMA. Of course, all government actors con­
tribute to the vindication of the Constitution’s equal 
protection guarantee. Yet, contrary to the claim of 
DOMA’s proponents that application of heightened 
scrutiny in the circumstances at issue here would 
overstep the role of the courts, equal protection law 
endows the judicial branch with a special responsi­
bility to safeguard historically subordinated groups, 
including gays and lesbians, whom the majoritarian 
political processes are often unwilling or unable to 
protect against constitutional violations.

ARGUMENT

I. An essential function of equal protection 
law is to guard against government action 
that subordinates historically marginalized 
groups.

A seminal role of equal protection law is to guard 
against government action that promotes or rein­
forces social hierarchy to the specific disadvantage of 
groups that have long been the subject of discrimina­
tion. The Court’s focus on government action that



5

perpetuates subordination is most apparent in early 
equal protection cases leading up to and following 
Brown v. Board of Education, 347 U.S. 483 (1954). 
These cases rejected state laws that subordinated 
African Americans as a class based on their pre­
sumed “inferiority.”3

A. The antisubordination principle devel­
oped as a tool to expose and invalidate 
the legacy of America’s racial caste sys­
tem.

In the years before Brown, LDF successfully 
brought a series of higher education cases to disman­
tle the “separate but equal” doctrine, established un­
der Plessy v. Ferguson, 163 U.S. 537 (1896), which 
consigned African Americans, by law, to an inferior 
social position. See, e.g., McLaurin v. Okla. State 
Regents for Higher Educ., 339 U.S. 637 (1950); 
Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 
631 (1948) (per curiam); Missouri ex rel. Gaines v. 
Canada, 305 U.S. 337 (1938). In Sweatt u. Painter, 
for example, this Court in 1950 mandated that the 
University of Texas Law School (UT) admit Heman 
Sweatt, who had been rejected based solely on his 
“Negro” status and instead offered admission to a 
separate law school that Texas had created for Afri­
can Americans. 339 U.S. 629, 631-32 (1950). The

3 The Court’s more recent cases that apply heightened scru­
tiny do not negate this core animating principle of equal protec­
tion law. Indeed, the Court has concluded that certain gov­
ernment classifications should be subject to heightened scru­
tiny because of a concern that those classifications both reflect 
and reinforce social stereotypes. See VMI, 518 U.S. at 541 (re­
viewing courts should take a “hard look” at overbroad generali­
zations that are likely to perpetuate discrimination).



6

Court rejected UT’s argument that the education of­
fered Sweatt at the newly-created segregated black 
school was “substantially equal.” Id. at 634. It rea­
soned that Sweatt’s exclusion from UT denied him 
the “standing in the community, traditions and pres­
tige” that were customarily accorded white students 
who graduated from UT. Id. at 634. As Sweatt illus­
trates, the Court’s unmooring of the “separate but 
equal” doctrine reflected its evolving view that sepa­
rate could never truly be equal because this doctrine 
was simply a state-sponsored subterfuge that had 
both the purpose and effect of creating and entrench­
ing a racial caste system.

The Court’s reasoning in Sweatt—taken together 
with the unmistakable impact of racial segregation 
on the lives of school children and indeed on the na­
tion—crystallized fully in Brown. Perhaps more 
than any other case, Brown points to the role that 
equal protection law has played in rooting out gov­
ernment action that relegates historically marginal­
ized groups to an inferior social status. Rejecting the 
systemic subordination of African-American children 
in public education under the doctrine of “separate 
but equal,” the Court concluded that forced racial 
separation by law “denot[es] the inferiority of the 
negro group” and “generates a feeling of inferiority 
as to their status in the community that may affect 
their hearts and minds in a way unlikely ever to be 
undone.” Brown, 347 U.S. at 494 (internal quotation 
marks omitted). The Court’s condemnation of both 
de jure segregation and the notion that “separate” 
could ever be “equal” cemented its rejection of laws 
that purposefully perpetuated racial subordination.



7

The Court also articulated this view of equal pro­
tection outside of the education context. In Strauder 
v. West Virginia, the Court struck down a state law 
that limited jury service to certain “white male” citi­
zens. 100 U.S. 303, 305, 310 (1880); see also Her­
nandez v. Texas, 347 U.S. 475 (1954) (holding that 
jury commissioners unconstitutionally excluded per­
sons of Mexican descent from jury service). The 
Strauder Court objected to the law on the grounds 
that its purpose was to “single Q out and expressly 
den[y] [African Americans] by a statute all right to 
participate in the administration of the law, as ju­
rors, because of their color, though they are citizens, 
and may be in other respects fully qualified.” 100 
U.S. at 308. In its categorical exclusion of African 
Americans from jury service, the state law “affixed 
. . .  an assertion of their inferiority, and [served as] 

a stimulant to that race prejudice which is an im­
pediment to securing to individuals of the race that 
equal justice which the law aims to secure to all oth­
ers.” Id. The Court focused on the demeaning and 
stigmatizing aspects of the law, which functioned 
“practically [as] a brand upon [African Americans]” 
and, in so doing, codified their subordinate status. 
Id.

The Court similarly applied this antisubordina­
tion principle to laws that discriminated against in­
terracial couples. In McLaughlin v. Florida, the 
Court applied heightened scrutiny to strike down a 
state law that penalized the cohabitation of interra­
cial couples, concluding that racial classifications 
that were designed to “single Q out the promiscuous 
interracial couple for special statutory treatment” 
were constitutionally impermissible. 379 U.S. 184,



8

196 (1964). The Court further observed that such 
laws “bear a far heavier burden of justification,” id. 
at 194, and indicated its presumptive suspicion of 
“invidious” distinctions that “‘select[] a particular 
race or nationality for oppressive treatment.’” Id. 
(quoting Skinner v. Oklahoma ex rel. Williamson, 
318 U.S. 535, 541 (1942)). While not stating so ex­
plicitly, the Court’s analysis reflected its underlying 
concern that the criminal penalty against interracial 
cohabitation furthered a system in which African 
Americans—and anyone who associated with them— 
were deemed to be socially inferior.

Loving v. Virginia, which followed McLaughlin, 
also illustrates this point. In Loving, the Court 
struck down Virginia’s “comprehensive statutory 
scheme aimed at prohibiting and punishing interra­
cial marriages.” 388 U.S. at 4. Virginia argued that 
the Court should “defer to the wisdom of the state 
legislature in adopting its policy of discouraging in­
terracial marriages” based on rational basis review. 
Id. at 8.

Importantly, this Court rejected that argument in 
Loving, finding that the apparent purpose of the 
statute was to “maintain White Supremacy.” Id. at 
11. As in its earlier decisions, the Court’s analysis 
reflected its underlying concern with state measures 
that create and/or entrench the social subordination 
of groups that have been the subject of persistent 
discrimination. Rejecting Virginia’s argument that 
the judgment of its legislature was owed deference, 
the Court concluded that Virginia failed to satisfy its 
“very heavy burden of justification which the Four­
teenth Amendment has traditionally required of 
state statutes drawn according to race.” Id. at 9.



9

Loving, like Strauder, Sweatt, Brown, and 
McLaughlin, illustrates this Court’s repudiation un­
der equal protection law of measures that are in­
tended to foster a social hierarchy to the disadvan­
tage of historically marginalized groups. Although 
equal protection law has evolved over time, the anti­
subordination principle remains at its core. Cf. VMI, 
518 U.S. at 534 (observing that classifications may 
be appropriate to compensate women for past eco­
nomic suffering but “may not be used, as they once 
were, to create or perpetuate the legal, social, and 
economic inferiority of women” (citation omitted)); 
Califano v. Webster, 430 U.S. 313, 320 (1977) (ap­
proving of differing treatment of men and women “to 
compensate for particular economic disabilities suf­
fered by women,” but not when such treatment re­
sults from “‘a traditional way of thinking about fe­
males’” (citation omitted)).4

4 Two amicus briefs filed in defense of DOMA’s constitu­
tionality contend that the states alone, and not the federal gov­
ernment, are subject to the Constitution’s equal protection 
guarantee. See Amicus Br. of Foundation for Moral Law 7-13, 
Amicus Br. of Citizens United’s National Committee for Fam­
ily, Faith and Prayer et al. 13-15. Yet this Court has long held 
otherwise. See Bolling u. Sharpe, 347 U.S. 497, 500 (1954); 
U.S. Merits Br. 16. On the same day that the Court issued its 
landmark opinion in Brown, striking down state-sponsored ra­
cial segregation in public schools, 347 U.S. 483, it also invali­
dated similar policies endorsed by the federal government for 
the District of Columbia public schools, on the ground that “it 
would be unthinkable that the same Constitution would impose 
a lesser duty on the Federal Government” than it does on the 
states. Bolling, 347 U.S. at 500. The Court thereafter has reaf­
firmed repeatedly the principle that the federal government is 
subject to the same antidiscrimination and antisubordination 
obligations that the Constitution imposes upon states. See, e.g.,



10

B. The antisubordination principle helped 
to cabin the expansion of heightened 
scrutiny.

As this Court has aptly noted, “community preju­
dices are not static, and from time to time other dif­
ferences from the community norm may define other 
groups which need the same protection.” Hernandez, 
347 U.S. at 478; United States v. Carotene Prods. 
Co., 304 U.S. 144, 152 n.4 (1938) (suggesting that 
the role of the courts is to safeguard “discrete and 
insular minorities” against discrimination by state 
actors). That is why heightened scrutiny has ex­
panded over time to include other classifications that 
burden socially stigmatized groups.

Of course, the nature of discrimination against 
gays and lesbians differs fundamentally from de jure 
racial segregation, just as racial discrimination dif­
fers from discrimination based on sex and other sus­
pect classifications to which heightened scrutiny ap­
plies. But DOMA and other laws that purposefully 
infringe on the rights of gay people are analogous to 
the racial caste system effectuated under “separate 
but equal” in an important respect: they create and 
perpetuate a social hierarchy that is premised on the 
superiority of one group over another.

By virtually any measure, gays and lesbians have 
been subjected to systemic discrimination through­
out our nation’s history, resulting in their ongoing

United States v. Paradise, 480 U.S. 149, 166 n.16
(1987) (plurality opinion) (“[T]he reach of the equal protection 
guarantee of the Fifth Amendment is coextensive with that of 
the Fourteenth.”); see also Adarand Constructors, Inc. v. Pena, 
515 U.S. 200, 235 (1995).



11

subordination as a class. And DOMA’s express pur­
pose is to create and perpetuate a hierarchy that 
disadvantages gay people based on their sexual ori­
entation. See Pedersen u. Office of Pers. Mgmt., 881 
F. Supp. 2d 294, 298-99 (D. Conn. 2012); Letter from 
Eric H. Holder, Jr., Attorney General, to John A. 
Boehner, Speaker, U.S. House of Representatives 
(Feb. 23, 2011) (J.A. 190) [hereinafter Holder Letter] 
(“[T]he legislative record underlying DOMA’s pas­
sage . . . contains numerous expressions reflecting 
moral disapproval of gays and lesbians and their in­
timate family relationships—precisely the kind of 
stereotype-based thinking and animus the Equal 
Protection Clause is designed to guard against.”).

Section 3 of DOMA defines “marriage” as a “legal 
union between one man and one woman,” and it de­
fines “spouse” as “a person of the opposite sex who is 
a husband or a wife” for the purpose of all federal 
laws and regulations. 1 U.S.C. § 7. DOMA, there­
fore, expressly denies marital benefits under federal 
law to gays and lesbians who are legally married 
under state law, while extending these same benefits 
to married heterosexual couples. See id. By cate­
gorically excluding gay people from “more than a 
thousand” federal protections and obligations that 
come with marriage, see U.S. Supp. Br. App. 13a, 
U.S. Merits Br. 17, DOMA treats gays and lesbians 
as legally and socially inferior. Cf. Romer v. Evans, 
517 U.S. 620, 631 (1996) (“Homosexuals are forbid­
den the safeguards that others enjoy or may seek 
without constraint. . . . These are protections taken 
for granted by most people either because they al­
ready have them or do not need them; these are pro­
tections against exclusion from an almost limitless



12

number of transactions and endeavors that consti­
tute ordinary civic life in a free society.”).

This exclusion is premised on stereotypes regard­
ing the fitness of gay and lesbian partnerships, see, 
e.g., Amicus Br. of Liberty Counsel 35-41, and moral 
condemnation of gay people more generally. For 
these reasons, DOMA is both stigmatizing and de­
meaning and perpetuates the historical discrimina­
tion that gay people have long'suffered as a group. 
Cf. Lawrence v. Texas, 539 U.S. 558, 575-76 (2003) 
(observing dignity harms of state law that targets 
same-sex sodomy but not sodomy between people of 
different sexes). This scheme, like any other that 
demeans and denigrates an entire class of people, 
should be subject to heightened scrutiny, not ra­
tional basis, as the Court of Appeals correctly con­
cluded.5 U.S. Merits Br. 21 & n.4.

5 The Court of Appeals faithfully applied this Court’s stan­
dard test for determining whether heightened scrutiny should 
apply to gays and lesbians. See U.S. Supp. Br. App. 15a-23a; 
U.S. Merits Br. 21; Windsor Merits Br. 18-31. “[T]here is, re­
grettably, a significant history of purposeful discrimination 
against gay and lesbian people, by governmental as well as pri­
vate entities, based on prejudice and stereotypes that continue 
to have ramifications today.” Holder Letter (J.A. 185); see U.S. 
Merits Br. 22-27. DOMA is but one of numerous laws that dis­
advantage gays and lesbians. Gays and lesbians also lack fed­
eral protection from discrimination in employment, housing, 
and public accommodations. In more than half of the states, 
gay and lesbian people lack any legal protection from discrimi­
nation in private sector employment (29 states), housing (30 
states), and public accommodations (29 states). (Chauncey Aff., 
J.A. 376; Segura Aff., J.A. 405.) Despite these political reali­
ties, other courts have concluded that the success of gay rights 
advocates in securing the passage of antidiscrimination legisla­
tion in some jurisdictions bars a finding of political powerless­



13

DOMA’s denial of marital benefits under federal 
law to gays and lesbians subordinates them within 
the institution of marriage. And like early laws that 
were designed to oppress African Americans, DOMA 
relegates gays and lesbians to an unequal and infe­
rior status as a group. This is contrary to the core 
purpose of equal protection.
II. The role of the courts is to safeguard the 

rights of historically subordinated groups 
by applying heightened scrutiny to laws, 
like DOMA, that disadvantage them as a 
class.

Respondent Bipartisan Legal Advisory Group of 
the United States House of Representatives (BLAG) 
and several of its amici argue that application of 
heightened scrutiny to laws that discriminate 
against gays and lesbians subverts the democratic 
process by “tak[ing] issues away from” voters. BLAG 
Br. 22; see also Amicus Br. of Liberty, Life and Law 
Foundation et al. 2, 22; Amicus Br. of National Asso­
ciation of Evangelicals et al. 3, 7, 14. But the Consti­

ness and, thus, application of strict scrutiny, see Conaway v. 
Deane, 932 A.2d 571, 611-12 (Md. 2007); Anderson v. King 
Cnty., 138 P.3d 963, 974-75 (Wash. 2006) (en banc). This is il­
logical. “It hardly follows that a group is politically ‘powerful’ 
because it has achieved some success in securing legal remedies 
against some formal and informal discrimination that has long 
burdened the group.” Jane S. Schacter, Ely at the Altar: Politi­
cal Process Theory Through the Lens of the Marriage Debate, 
109 Mich. L. Rev. 1363, 1393 (2011). Any meaningful analysis 
of political power must consider the history of discrimination 
that led to the need for antidiscrimination legislation in the 
first place, as the Court of Appeals correctly concluded. See 
U.S. Supp. Br. App. 22a (citing Frontiero v. Richardson, 411 
U.S. 677, 687 (1973) (plurality opinion)).



14

tution’s guarantee of equal protection locates in the 
judiciary a special responsibility of prodding society 
to reexamine assumptions that are rooted in animus, 
bigotry, and social stereotypes that in turn entrench 
social caste. See Carotene Prods., 304 U.S. at 152 
n.4. While all branches of government have a role 
to play in ensuring the equal protection of the laws, 
the judiciary is best situated to protect subordinated 
groups whose rights are not always protected by ma- 
joritarian political processes. See Nixon v. Condon, 
286 U.S. 73, 89 (1932) (“[Equal protection] lays a du­
ty upon the court to level by its judgment these bar­
riers . . . .”).

The passage of DOMA illustrates well the need 
for more searching judicial review. DOMA was en­
acted in large measure in response to the Hawaii 
Supreme Court’s decision in Baehr v. Lewin, 852 
P.2d 44 (Haw. 1993), which suggested that the 
state’s ban on same-sex marriage likely violated the 
equal rights amendment to the Hawaii Constitution, 
id. at 67. H.R. Rep. No. 104-664, at 2 (1996). Con­
gress’s sweeping response, made explicit in the legis­
lative record, puts gays and lesbians who choose to 
marry on a separate, unequal, and lesser footing 
than married heterosexuals and, therefore, subordi­
nates gay people as a class. Cf. Plessy, 163 U.S. at 
559-60 (Harlan, J., dissenting).

First, by denying federal benefits to legally mar­
ried gay and lesbian couples, which are granted to 
otherwise similarly situated heterosexual couples, 
DOMA codifies a social hierarchy based on sexual 
orientation that has destructive social and economic 
consequences. Second, DOMA promotes harmful 
and inaccurate stereotypes of gays and lesbians as



15

immoral and as unfit parents in ways that reinforce 
their status as a lesser class. Cf. Frontiero, 411 U.S. 
at 686-87 (statutory distinctions between the sexes 
can “have the effect of invidiously relegating the en­
tire class of females to inferior legal status without 
regard to the actual capabilities of its individual 
members”); Loving, 388 U.S. at 11 (concluding that 
purpose of antimiscegenation law is to maintain 
“White Supremacy”); Plessy, 163 U.S. at 560 (Har­
lan, J., dissenting) (noting that the “real meaning” of 
the law requiring racial segregation in public trans­
portation was “that colored citizens are so inferior 
and degraded that they cannot be allowed to sit in 
public coaches occupied by white citizens”).

In every sense, DOMA demeans and stigmatizes 
gays and lesbians generally and consigns married 
gay men and lesbians in particular, by operation of 
law, to an inferior status. Consistent with the core 
function of equal protection law, the application of 
heightened scrutiny to DOMA is crucial.6

The application of heightened scrutiny to degrad­
ing and oppressive laws has been instrumental in 
pushing past discriminatory barriers of all kinds by 
signaling that such laws should have no place in our 
society. More searching judicial review is critical to 
advancement of civil rights for all, and to our pro­
gress as a nation.

6 To be clear, DOMA could not pass constitutional muster 
even under a more relaxed standard of review. See Windsor 
Merits Br. 32-59.



16

CONCLUSION

For the foregoing reasons, as well as those out­
lined by the United States and Respondent Edith 
Schlain Windsor, the Court should affirm the judg­
ment of the Court of Appeals.

Respectfully submitted,

Sherrilyn Ifill 
Director- Counsel 

Elise C. Boddie 
Counsel of Record 

Rachel M. Kleinman 
Ria Tabacco Mar 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
212-965-2200 
eboddie@naacpldf. org

Joshua Civin 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I Street, NW, 10th Floor 
Washington, DC 20005

Counsel for Amicus Curiae

March 1, 2013