With the Thomas More Society, the Family Research Council has filed a Supreme Court amicus brief against the overturn of DOMA. Among their many arguments is that DOMA is not intended to discriminate against gay people.
Even assuming, for purposes of disparate impact analysis, that sexual orientation is to be treated in the same manner as race or gender and subject to heightened scrutiny, neither plaintiff nor the Government has cited any evidence that even remotely supports the conclusion that in enacting § 3 of the Defense of Marriage Act, Congress, as opposed to certain individual members thereof, had the intent or purpose to discriminate against homosexuals who wish to marry someone of the same sex, rather than the mere knowledge that § 3 could have a disparate impact on them.
The brief is 43 pages long. Please dig in and give us your thoughts.