House Republicans continue to press dismissal of claims made in Aranas v. Napolitano, challenging Section 3 of DOMA
October 18, 2012
By Scottie Thomaston
The Justice Department filed “procedural” and partial motions to dismiss in Aranas v. Napolitano, opposing the dismissal of the equal protection challenge against Section 3 of the Defense of Marriage Act but supporting dismissal of the plaintiffs’ due process claims as well as their sex discrimination claims and, as the case is a class-action lawsuit against Section 3 of DOMA as applied to immigration, opposing the plaintiffs’ motion to certify as a class.
The Justice Department has been arguing that Section 3 of DOMA is an unconstitutional violation of equal protection principles, singling out same-sex couples and treating them differently from opposite-sex couples. But the Justice Department has opposed plaintiffs’ due process challenge, because they say no ‘fundamental right’ is at stake – the plaintiffs would essentially, according to the Justice Department, be arguing that there is a fundamental right to government benefits, when the Supreme Court has held otherwise.
In a new filing, the Bipartisan Legal Advisory Group (BLAG), who has been defending Section 3 of DOMA on behalf of House Republicans, respond to the Justice Department’s motions by asking the court to deny their “procedural” motion to dismiss, and to grant their partial motion to dismiss – the due process and sex discrimination arguments.
BLAG argues there would be serious constitutional issues with granting the “procedural” motion to dismiss, because the implication is that Congress would not have the power to step in and defend laws when the Justice Department decides not to. They suggest it would in effect make the executive branch “gatekeepers” of the entire proceedings, and they write that allowing an opposing party to do that would have serious repercussions.
And while BLAG is still alone in contending that Section 3 of DOMA is constitutional under equal protection principles, they, too, want the court to dismiss the due process and sex discrimination challenges.
h/t Kathleen for this filing