On June 3, the House Bipartisan Legal Advisory Group -- the three Republican members -- filed a motion to dismiss Karen Golinski's lawsuit seeking equal health insurance benefits for her wife. A federal court employee in California, Golinski has spent the past couple years in a legal process that had at one point pitted the judges of the U.S. Court of Appeals for the Ninth Circuit against the Office of Personnel Management and resulted in the present lawsuit.
From its recitation of the facts -- quoting generously from Democrats who supported the bill in 1996 -- to the equal protection legal arguments, Clement and the BLAG present a vigorous defense of the law.
A key portion of the BLAG's argument that only opposite-sex -- and not same-sex -- marriage is a fundamental right:
Unlike traditional marriage, same-sex marriage, by any objective measure, is not deeply rooted in American law and history — indeed, it has scarcely any roots at all. Although the landscape has changed somewhat in the last 15 years, see infra at 17, when Congress enacted DOMA in 1996, not one of the 50 states permitted same-sex marriage, and no American court had discovered a state or federal constitutional right to same-sex marriage.
Interestingly, as for equal protection -- that DOMA discriminates against same-sex couples -- the Clement filing appears not to dispute the immutability of sexual orientation:
The overwhelming majority of same-sex marriages will be between two individuals who share the same sexual orientation and, therefore, it is reasonable to regard DOMA as drawing a line based on sexual orientation.
The brief does, however, argue that U.S. Supreme Court and appellate court precedent means that only rational basis -- and not the heightened scrutiny President Barack Obama determined applies to sexual orientation classifications -- should apply in cases challenging DOMA:
Given these binding precedents, there is no need to review the considerations that make a class suspect or not. That said, no one can doubt the political power of those who support same-sex marriage and similar rights. Congress’s passage of the Don’t Ask Don’t Tell Repeal Act of 2010, and the Matthew Sheppard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, P.L. 111-84, §§ 4701-13, 123 Stat. 2190, 2835-44, are two recent examples that reflect that influence. DOJ’s decision to forego the defense of DOMA is itself an example. That decision resulted from sharp public criticism of the Obama Administration by gay rights organizations.
Assuming that rational basis applies, Clement argues for the BLAG:
Because DOMA does not implicate a suspect class, Congress could rationally decide to adhere to the historic, fundamental-rights definition of marriage — for purposes of federal law only, and without prohibiting any marital arrangements that a particular state might choose to permit. Consistent with equal protection principles, Congress reasonably could choose to extend federal benefits based on the historic definition of marriage rather than a recently-minted definition that would encompass same-sex marriages.
Clement raises the procreation issue -- quoting Maggie Gallagher at one point -- and cites an earlier sex discrimination case to buttress his point:
Logically, the experience of a child raised by a man and a woman may differ from that of a child raised by same-sex caregivers. See United States v. Virginia, 518 U.S. 515, 533 (1996) (“The two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both.”) (quotation marks and brackets omitted).
Incidentally, the next line in U.S. v. Virginia – the case that ended the Virginia Military Institute’s men-only admission policy – was: "'Inherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity."
Toward the end, Clement also makes a point about the "limited" scope of DOMA:
Finally, it bears emphasizing that DOMA’s effect is limited. DOMA only defines marriage for purposes of benefits—and burdens—, created by other federal laws. … Congress "did not penalize" same sex couples; it "decided not to offer them a special inducement."
On June 8, Golinski's lawyers asked for a one-week extension -- until June 24 -- to respond.
Read Clement's BLAG brief: Golinski-MtDMemorandum-BLAG.pdfFollow @metroweekly