In a move long over due, on Friday the Obama Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife. Golinski correctly maintains that DOMA is unconstitutional - something that the human resources department of the federal court for which Golinski works agreed with. The filing by the DOJ is a direct confrontation to a filing by counsel for the House Bipartisan Legal Advisory Group's Republican members which asked that Golinki's lawsuit be dismissed. In its brief, the DOJ admitted the federal government's "significant and regrettable role" in discrimination in America against gays and lesbians. The full brief can be found here. Chris Geidner with Metro Weekly has a great article on the DOJ action which I recommend be read in its entirety. No doubt Tony Perkins, Marcus Bachmann and his lunatic wife, and other mentally disturbed Christofascists will be hyperventilating and the spittle will be flying fast and furiously. Here are some story highlights:*
[T]he Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.
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DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians. The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 ('DOMA'), unconstitutionally discriminates."
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The filing signed by Christopher Hall, a trial attorney with DOJ, responds to the June 3 filing by the lawyers for the House Bipartisan Legal Advisory Group's Republican members asking the federal court in San Francisco to dismiss Golinski's lawsuit. That June 3 filing was the first in which Paul Clement -- the outside lawyer hired by the Republican leaders to defend the Defense of Marriage Act in court -- presented a substantive defense of the law.
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Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder's decision that Section 3 of DOMA -- the federal definition of marriage -- is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional.
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Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."
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The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by courts when deciding what level of scrutiny should be applied to laws classifying groups -- including immutability; political powerlessness; and whether the classification bears any relation to, as the brief puts it, "legitimate policy objectives or ability to perform or contribute to society."
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DOJ's lawyers conclude that heightened scrutiny applies and argue how, under that heightened scrutiny, Section 3 of DOMA should be found to be unconstitutional. Heightened scrutiny, the brief details, would require that Section 3 is substantially related to an important government objective. DOJ states: "Section 3 fails this analysis."
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In addition to the DOJ filing, Golinski earlier today filed a motion for summary judgment, arguing that there are no factual disputes in her case that require a trial and that the court can and should decide the case in her favor on the legal issues alone.
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It's amazing for once to see the government arguing what I have argued over and over again, including in the Moore v. Virginia Museum of Natural History case which fell on deaf ears at the Virginia Supreme Court.
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