The Fallout: DOJ Drops First Circuit DOMA Defense; Immigration and DADT Questions Raised

Posted by Chris Geidner
February 25, 2011 11:30 AM |

The fallout has been rapid and expansive from the Feb. 23 letter from Attorney General Eric Holder to House Speaker John Boehner regarding the government's decision to stop defending Section 3 of the Defense of Marriage Act. Section 3 sets the federal definition of "marriage" and "spouse" as referring only to opposite-sex married couples.

In a move that was discussed in the Feb. 23 letter, the Department of Justice filed a letter on Feb. 24 in the U.S. Court of Appeals for the First Circuit announcing that it "will cease its defense" of Section 3 of the Defense of Marriage Act in the two cases on appeal before the appellate court, Gill v. Office of Personnel Management (which is referred to on appeal as Hara v. Office of Personnel Management -- Peter Hara is another plaintiff in the case) and Massachusetts v. United States.

In a release about the letter filed in the First Circuit, Mary L. Bonauto, GLAD's Civil Rights Project Director and lead attorney in Gill, said, "It is increasingly clear to everyone what has been clear to gay and lesbian families for years - that DOMA's denial of protections available to all other married families is discriminatory, harmful, and unjustifiable. DOJ's acknowledgement of this is momentous. At the same time, we know this isn't the end of the road."

The third DOMA Sec. 3 challenge, Golinski v. Office of Personnel Management, is pending before the U.S. District Court for the Northern District of California. According to a news release from Lambda Legal, which represents Karen Golinski, the judge in that case has asked the government to "explain how the government plans to pursue its defense of the case following [the Feb. 23] announcement that President Obama and Attorney General Holder have concluded that DOMA is unconstitutional and inappropriate to defend."

U.S. District Judge Jeffrey White wrote:

Based on the Executive Branch's determination that the legislation is affirmatively unconstitutional, the Court requires responses to the following questions: (1) does the Office of Personnel Management ("OPM") intend to reassess its position on its original instruction to Plaintiff's insurer to decline to extend benefits to her same-sex spouse? (2) How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend? (3) Should the Court remand this matter to the Ninth Circuit’s administrative process for proper adjudication of Plaintiff's access to benefits for her wife? (4) On what basis can OPM defend its position to decline to extend benefits in a case in which such declination was based on the defense of unconstitutional legislation?

The Court requires a written response to this Order indicating the parties' positions in response to the Statement and its potential effect on the outcome of this matter. A response shall be filed by Defendants by no later than February 28, 2011. Plaintiff may respond thereafter, by no later than March 7, 2011.

Additionally, attorney Lavi Soloway announced that he will be filing requests in New York, New Jersey and California on behalf of three married, same-sex binational couples -- two gay male couples and one lesbian couples -- where one spouse is facing deportation. According to Soloway, "Each will brandish a pending green card petition filed by the American spouse on behalf of the foreign spouse." Soloway writes that he "will argue that deportation proceedings should be halted because the only thing standing between each couple and a green card is [Section 3 of] the Defense Of Marriage Act, which the President and the Attorney General announced this week will no longer be defended in court."

Finally, as discussed earlier, the Department of Justice faces a deadline to file its brief today in its appeal of Log Cabin Republicans v. United States, the gay Republicans group's challenge to "Don't Ask, Don't Tell."

Read the First Circuit letter: doj-letter-re-ma-doma-cases-02-2011.pdf

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