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Back to Section One | Back to Arts & Entertainment
posted Friday, June 15, 2012 - Volume 40 Issue 24
Republican senators file brief supporting DOMA
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Republican senators file brief supporting DOMA

by Mike Andrew - SGN Staff Writer

Republican Senator Orrin Hatch and nine of his GOP colleagues, including Minority Leader Mitch McConnell, have filed an amicus brief in support of DOMA with the Ninth Circuit Court of Appeals in the case of Golinski v. OPM.

U.S. District Judge Jeffrey White ruled in February that the federal Defense of Marriage Act is unconstitutional because it violates the equal protection clause of the Fifth Amendment. White also ruled that the so-called Bipartisan Legal Advisory Group (BLARG), set up by Republican House Speaker John Boehner to defend DOMA, had not demonstrated a compelling government interest in upholding the law.

The case is now being heard by the Ninth Circuit Court. Amicus - or 'friend of the court' - briefs are often filed in appeals cases by individuals or groups that have a strong opinion about the legal principles in a case but are not actual parties to the suit.

In their brief, the Republican senators argue that White was wrong in finding that Congress originally passed DOMA based on 'animus toward Gay men and Lesbians.'

No legal principle 'authorizes a court to strike down an otherwise constitutional law based on the belief that legislators individually, or the Congress as a whole, were motivated by 'animus,' the senators say in their brief.

The brief also asserts that Sen. Hatch, who chaired the Senate Judiciary Committee when DOMA was passed, received written assurances from the Clinton Justice Department that the legislation was constitutional.

In a footnote, the senators - many of whom are from Southern states - also indicate they were offended by White's comparison of DOMA to earlier laws forbidding interracial marriage. The U.S. Supreme Court invalidated all such laws in 1967.

Along with Hatch and McConnell, the senators signing on to the brief were Saxby Chambliss of Georgia, Dan Coats of Indiana, Thad Cochran and Roger Wicker of Mississippi, Mike Crapo of Idaho, Charles Grassley of Iowa, Lindsey Graham of South Carolina, and Richard Shelby of Alabama.

Six current Republican senators who voted for DOMA did not sign on to the filing, including Jon Kyl and John McCain of Arizona, Richard Lugar of Indiana, Olympia Snowe of Maine, James Inhofe of Oklahoma, and Kay Bailey Hutchison of Texas.

Also filing amicus briefs in the Golinski case were former U.S. Attorneys General Edwin Meese and John Ashcroft, 14 state attorneys general, the National Organization for Marriage (NOM), and the American College of Pediatricians.

The Golinski case has its origins in conflicting orders from federal courts and the federal department responsible for administering employee benefits.

Karen Golinski and Amy Cunninghis registered as domestic partners with the city of San Francisco in 1995 and with the state of California in 2003. They married in 2008 during the period when same-sex marriage was legal in California, and they remain legally married.

Golinski, a federal employee, registered Cunninghis for spousal health care benefits, but the federal Office of Personnel Management decided she was not entitled to those benefits because DOMA forbids federal agencies from recognizing same-sex marriages.

Golinski then sued, claiming discrimination. Ninth Circuit Court Chief Judge Alex Kozinski ordered OPM to process Golinski's application in 2009, but OPM refused to comply.

In his decision, Judge White upheld Kozinski's ruling, saying that 'considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny' because of the history of discrimination faced by the LGBT community, its lack of political power relative to the straight community, and the immutability of sexual orientation.

'Heightened scrutiny' means that a law may not treat different categories of people differently unless the law addresses an important government interest, significantly furthers that interest, and is actually necessary to further that interest.

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