The U.S. Department of Justice has now filed briefs setting forth its arguments on the merits in the two same-sex marriage cases that will be argued before the Supreme Court later this month. On Feb. 22, the Justice Department filed a merits brief (full text) in United States v. Windsor, the challenge to the constitutionality of the Defense of Marriage Act. Yesterday the Justice Department filed an amicus brief (full text) with the U.S. Supreme Court in Hollingsworth v. Perry, the federal equal protection challenge to California's Proposition 8. In both cases, the Justice Department argued that classifications based on sexual orientation should, when challenged under the Equal Protection Clause, be subject to heightened scrutiny. In its Hollingsworth brief, DOJ stated directly that: "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes."
In its Windsor brief, DOJ argued rather straight forwardly that Section 3 of DOMA fails heightened scrutiny. In its Hollingsworth brief, however, the Department of Justice took a more complicated position. As discussed by Lyle Denniston at SCOTUS Blog, DOJ took the position that California's Proposition 8 fails the heightened scrutiny test, but in an argument that stops short of contending that the U.S. Constitution requires all states to recognize same-sex marriage. DOJ reasoned that California does not substantially further any important governmental interest by barring same-sex marriage since it already gives same-sex couples the right to enter domestic partnerships that confer all the same rights as marriage. This argument would apply only to the 8 states that have granted domestic partners or those who have entered civil unions rights equal to those of married couples.