Plaintiff Karen Golinski with wife Amy Cunninghis.
Chris Geidner at Metro Weekly has just posted a story about a brief the Department of Justice has filed in the Defense of Marriage Act Constitutional challenge Karen Golinski has filed against the administration's Office of Personnel Management (OPM).
Golinski an employee of the Federal court system in California's Ninth Circuit had sued to have her wife placed on her health insurance. The OPM had argued that they couldn't do so because of DOMA. Golinski enjoys the support of the Federal Court's hierarchy in the case. The case presents an interesting and unique question of separation of powers, in that, is it within Congress and the Executive Branch's authority to dictate compensation policy for the Judicial branch?
That question may be moot though. The DOJ has thrown its weigh behind the plaintiff Golinski, arguing against the House Bipartisan Legal Group's motion to dismiss the case. It is arguing at length that DOMA is unconstitutional, and as such, Ms. Golinski deserves her day in court.
From Geidner's Metro Weekly piece:
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. Previously, the government had attached a Feb. 23 letter from Holder to House Speaker John Boehner (R) announcing the DOJ position to filings in courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.
In describing why heightened scrutiny applies to classifications based on sexual orientation, the DOJ's lawyers -- in describing how "gays and lesbians have been subject to a history of discrimination" -- write, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals." The filing then goes on to detail the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement, President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It 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."
DOJ's lawyers go on to describe how, under 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."
PDFs of the briefs are available here.
• DOJ's Opposition to the BLAG Motion to Dismiss
• Golinski's Motion for Summary Judgment
This is a very welcome change from 2009 when the Department of Justice tasked a Bush administration holdover to argue against gay marriage with language many found incendiary and hurtful (though others disagreed).
Thank you, President Obama, Attorney General Holder. Now we're talking change.
Update
Tobias Barrington Wolff is a Professor of Law at the University of Pennsylvania Law School. He writes and teaches in the fields of Civil Procedure, Constitutional Law, and Conflict of Laws and also served as an adviser to the Obama 2008 campaign on LGBT issues. Strongly recommending everyone read the brief, he has this to say:
It represents the concrete manifestation of a complete paradigm shift in the Federal Government's position on antigay discrimination and the constitutional rights of married same-sex couples and relies extensively upon decades of work from leaders in our community like Gary Gates, William Eskridge, Pat Cain and Gregory Herek.
It took longer to get DOJ to this place than we would have liked, and there was a spiritual cost in that delay that it was right for us to articulate, and articulate strongly. But this is the Federal Government position that we have been fighting for these many decades. It is difficult to overstate its significance, and we should not fail to recognize the effort and leadership that were required at the highest levels to make it happen.
Look for his piece at the Huffington Post soon.
Update 2
Statement from Joe Solomnese, Executive Director of
Human Rights Campaign:
“The Administration's decision to call DOMA what it is -- a law that serves no purpose but to single out a group of people for second-class status -- was a watershed moment in the fight for LGBT equality. Now the federal government has taken that historic stand a step further and put real meat on the bones of why there is no basis for DOMA to stand. This step represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history."