Department of Justice files brief arguing that the Defense of Marriage Act is unconstitutional

http://www.prop8trialtracker.com/

By Adam Bink

Quite some news. Noted this morning by Ann S and others in the comments, the Department of Justice filed a brief in the Golinski case, laying out an expansive argument for why DOMA is unconstitutional. Chris G.:

Today, the 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 a brief filed on behalf of the Office of Personnel Management and other federal government defendants, the summary of the 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.”

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 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.

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 indivduals.” 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.”

The brief goes on to detail state and local discrimination, as well as private discrimination, before discussing other considerations of 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.”

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.”
The entire brief can be found here.

http://www.prop8trialtracker.com/wp-content/uploads/2011/07/DOJ-OppToBLAGMtD.pdf

[url http://www.dailykos.com/story/2011/07/01/990688/-Update:-Reactions-%7C-DOJ-Arguing-Against-Boehner-On-DOMA

Fri Jul 01, 2011 at 08:57 PM PDT
Update: Reactions | DOJ Arguing Against Boehner On DOMA
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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.

Really sad that immorality and perversion is being pushed as normal and acceptable.

JMO.

That is my opinion and I will not argue it further.

Current U.S. Supreme Court Justices
Chief Justice

John Roberts
Associate Justices

Samuel Alito

Stephen Breyer

Ruth Bader Ginsburg

Elena Kagan

Anthony Kennedy

Antonin Scalia

Sonia Sotomayor

Clarence Thomas

This will certainly open more avenues toward equality of LGBT.

I'm with you.

Might not what to hold your breath abot Clarence Thomas!!


I've written to all of these people, at least three times. I figure it's a little like writting to my congressmen. It doesn't get me too far but at the very least they know that some people our here care about the outcome of particular cultural changes.

Really sad that immorality and perversion is being pushed as normal and acceptable.

JMO.

That is my opinion and I will not argue it further.

I support Gay Rights and equal rights BUT if the population of the state in question votes it down then that should be it. It is what it is and they need to accept it.

This isn't about what we consider "normal" or what we find "acceptable". As a nation, we are a republic. Our laws limit the Government's power. We should focus on giving our citizens as much freedom as possible and stand out of the way. I'm all for getting the Government out of marriage entirely, but somehow that concept is too hard for most people to understand.

Might not what to hold your breath about Clarence Thomas!!


I've written to all of these people, at least three times. I figure it's a little like writing to my congressmen. It doesn't get me too far but at the very least they know that some people our here care about the outcome of particular cultural changes.

well said, especially from someone of strong faith such as yourself. i think the only place for government in marriage is in the contract sense. call it a marriage contract, sall it a civil union contract, matters not to me but call it the same for everybody and let the contract protect both parties and more importantly the kids in financial issues in the event of a divorce. the laws should end there.

This isn't about what we consider "normal" or what we find "acceptable". As a nation, we are a republic. Our laws limit the Government's power. We should focus on giving our citizens as much freedom as possible and stand out of the way. I'm all for getting the Government out of marriage entirely, but somehow that concept is too hard for most people to understand.

Really sad that immorality and perversion is being pushed as normal and acceptable.

JMO.

That is my opinion and I will not argue it further.