Their voices may be political but their arguments are deeply constitutional.
Over 200 members of Congress -- including House Minority Leader Nancy Pelosi and Senate Minority Leader Harry Reid -- chimed in Friday on the marriage equality cases scheduled to be heard by the high court in April. The lawmakers filed a "friend of the court" brief based on their “strong interest” in “ensuring that state definitions comply with constitutional guarantees and do not discriminate against classes of citizens.”
Relying heavily on U.S. v. Windsor -- in which the high court struck down the Defense of Marriage Act -- the Democratic leaders argue that state laws governing marriage must answer to the Constitution. Moreover, the lawmakers say, under Windsor, courts must apply an elevated level of scrutiny to determine the constitutionality of marriage-related laws. That is, instead of simply having to show that a rational relationship exists between a marriage-related law and a legitimate governmental interest, the lawmakers claim that states defending gay marriage bans should have to meet a higher judicial bar.
But regardless of the standard the court applies, the brief asserts, there is no justification for depriving citizens of liberty; state bans directly interfere with federal protections in the form of essential programs from social security to housing to veteran and military benefits. Of course, there is the rule of law and then there are the real life stories of the couples who have suffered irreparable harm due to their state’s ban on same-sex marriage, and the congressional leaders who filed Friday's brief relied on both to make their case.
Thirty-seven states currently allow gay and lesbian couples to legally wed, including some in the most conservative parts of the country, like Alabama and South Carolina. The U.S. Supreme Court is set to consider the question of whether the Constitution guarantees the right for same-sex couples to marry next month, and could issue a landmark ruling by June that effectively invalidates the remaining 13 bans.