Yesterday's DOMA Hearing in San Francisco

I have long maintained that the federal Defense of Marriage Act ("DOMA") is blatantly unconstitutional and nothing more that a federal codification of anti-gay conservative Christian religious belief. Moreover, DOMA tramples on the long standing practice of having marriage laws - except to the extent that they violate the U.S. Constitution (e.g., anti-interracial marriage laws) - left to the purview of the states. Yesterday, in San Francisco a federal court considered whether DOMA's federal definition of marriage unconstitutionally limits plaintiff Karen Golinski's ability to secure health insurance for her wife. Golinski and her same sex spouse are legally married under state law. The Department of Justice appeared and argued in support of Golinski's argument that DOMA is unconstitutional. Arguing in support of DOMA was an attorney for House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG). Here are highlights from Metro Weekly on the courtroom showdown:

The Department of Justice sent one of its top lawyers to federal court in San Francisco today [yesterday] to argue that the Defense of Marriage Act's federal definition of marriage unconstitutionally limits Karen Golinski's ability to secure health insurance for her wife.

Pitting the House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG) against Golinski and the Obama administration, today's hearing presented the question to U.S. District Court Judge Jeffrey S. White whether Golinski's challenge should be dismissed and, if not, whether she should be granted a decision in her favor without a trial.

Assistant Attorney General Tony West, the head of the civil division of DOJ, appeared in court to argue DOJ's position. Lambda Legal's Tara Borelli and Morrison & Foerster's Rita Lin represented Golinski.

As to his treatment of the arguments advanced by BLAG to support DOMA's constitutionality, Borelli said of White, "He really expressed some serious, significant skepticism at some of the arguments they were making."

In White's questions, he not only appeared skeptical of BLAG's arguments but also appeared at least curious about BLAG's view of its constitutional basis to be there at all. In one question, he asked, "What is the statutory authority for and evidence of compliance with the role that the Bipartisan Legal Advisory Group has assumed in this matter? Is this group actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?"

White went on to cite an earlier Supreme Court case about congressional representation in the courts, INS v. Chadha, in which he wrote that the court held that "Congress is the proper party to defend the validity of a statute when an agency of government charged with enforcing the statute agrees that the statute is unconstitutional."

Borelli also referenced the historic nature of the hearing, pointing out, "This is the first time that the lawyers BLAG has hired [to defend DOMA] have appeared in court. This is the first time DOJ has appeared ... to argue" its position that heightened scrutiny should apply to sexual orientation classifications and that, under that standard, DOMA should be found unconstitutional.

The judge had previously set out a list of questions that counsel for both sides were to address that can be viewed here. My favorites are the following:

3. In Lawrence v. Texas, 539 U.S. 558, 567 (2003), the Supreme Court, in overruling Bowers v. Hardwick, 478 U.S. 186, 190 (1986), noted that the Bowers Court had “misapprehended the claim of liberty presented to it” and had failed “to appreciate the extent of the liberty at stake.” Here, BLAG advocates defining the right at issue as the right to same-sex marriage. Is that too narrowly defining the right at issue? What is the authority for the position that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?

4 Are classifications based on religious affiliation treated as suspect class and subject to heightened scrutiny under an Equal Protection analysis? How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

6. How does BLAG distinguish the ruling in Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010), which found that DOMA does not pass constitutional muster under even rational basis scrutiny?

8. How does the sharing of benefits with another group of lawfully married persons
denigrate the importance of the benefits already conferred upon the original group? In other words, how are heterosexual lawfully married persons affected by the sharing of benefits with lawfully married homosexual persons?