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Back to Section One | Back to Arts & Entertainment
posted Friday, July 8, 2011 - Volume 39 Issue 27
DOJ says DOMA unconstitutional DOMA, motivated by bias
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DOJ says DOMA unconstitutional DOMA, motivated by bias

by Mike Andrew - SGN Staff Writer

The U.S. Department of Justice (DOJ) filed a brief in federal court on July 1, arguing that the Defense of Marriage Act (DOMA) is unconstitutional because it was 'was motivated in large part by animus toward Gay and Lesbian individuals and their intimate relationships.'

The DOJ brief presented a detailed account of the history of discrimination by government institutions against Lesbians and Gay men. It also provided evidence that the passage of DOMA in 1996 was specifically motivated by prejudice against Gay people.

'The federal government has played a significant and regrettable role in the history of discrimination against Gay and Lesbian individuals,' the DOJ concluded.

Under these circumstances, the DOJ said, laws that treat Lesbian and Gay people differently must be subject to heightened scrutiny.

The DOJ concluded that DOMA failed to meet this legal test and is therefore unconstitutional.

While Attorney General Eric Holder announced in February that President Obama had concluded DOMA is unconstitutional, and that the DOJ would no longer defend the law in court, this is the first time that government lawyers have explicitly argued in court that DOMA is unconstitutional.

The DOJ brief was filed in the US Ninth Circuit Court of Appeals in the case of Golinski v. Office of Personnel Management (OPM).

Plaintiff Karen Golinski is a resident of California and an employee of the Ninth Circuit Court of Appeals.

She married her spouse, Amy Cunninghis, in California during the brief period when it was legal to do so. Since the California Supreme Court has ruled that Prop 8 does not invalidate marriages concluded prior to its passage, Golinski remains legally married to Cunninghis.

As an employee of the Ninth Circuit Court, Golinski is entitled to health care coverage for her spouse, and she applied for it.

Her application was denied on the grounds that, under DOMA, federal agencies do not recognize same-sex marriages.

Golinski then filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan.

Chief Judge Alex Kozinski ruled in 2009 that she was entitled to spousal health benefits, but the OPM, which has jurisdiction over federal employee benefits, announced that it would not comply with his ruling.

In January 2010, Lambda Legal filed suit on Golinski's behalf against the federal government in U.S. district court, in accordance with the terms of the Employment Dispute Resolution Plan.

On March 17 of this year, U.S. District Judge Jeffrey S. White dismissed the suit on procedural grounds, but invited Golinski to amend her suit to challenge the constitutionality of DOMA Section 3.

Section 3 of DOMA is the part that limits marriage to opposite-sex couples. Golinski filed an amended suit to challenge it on April 14.

On May 3, BLAG (the Bipartisan Legal Advisory Group) - organized by House Speaker John Boehner to defend DOMA after DOJ announced it would not - filed a motion to dismiss Golinski's suit.

According to BLAG's attorneys, DOMA is valid 'because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children.'

On July 1, Golinski's attorneys filed a motion for summary judgment, asking the trial court to make a final ruling in Golinski's favor. The DOJ brief was filed in support of this motion.

The admission by DOJ attorneys that government institutions have discriminated against Gays and Lesbians, and that DOMA specifically is discriminatory, was celebrated by marriage equality activists as well as by Golinski's attorneys.

'It's quite powerful to have the administration saying in a court filing that this kind of discrimination should be viewed suspiciously,' Lambda Legal attorney Tara Borelli said.

'This is a historic shift with enormous significance,' she continued. 'As more courts adopt this analysis, DOMA will fall along with other laws that set Lesbian and Gay people apart for unequal treatment.'

'This brief represents the concrete manifestation of a complete paradigm shift in the federal government's position on anti-Gay discrimination and the constitutional rights of married same-sex couples,' University of Pennsylvania law professor Tobias Barrington Wolff told AP reporters.

While they were clearly happy with the DOJ's intervention in the case, Golinski's attorneys also warned that the case is not yet decided.

'Unfortunately, this battle isn't over yet,' said Rita Lin, an associate attorney at Morrison & Foerster LLP, and a co-counsel for Golinksi.

'The lawyers representing the House leadership are still fighting us in court, and until DOMA is struck down by a court or repealed, Karen Golinski still cannot enroll her wife in her family health plan. She works every day with co-workers who can cover their spouses, but she cannot.'

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