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 terms unparalleled in previous administration statements.
In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians.
The summary of the DOJ 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 June 3 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 the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.
But, for Golinski's case, DOJ did so. In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, 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 individuals."
Compare that to the Feb. 23 letter, where Holder used more vague language, writing, "[T]here is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today."
Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also 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 describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by 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 conclude that heightened scrutiny applies and argue how, under that 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."
After detailing why, the brief concludes, "[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional."
In addition to the DOJ filing, Golinski earlier today filed a motion for summary judgment, arguing that there are no factual disputes in her case that require a trial and that the court can and should decide the case in her favor on the legal issues alone.
- DOJ's Opposition to the BLAG Motion to Dismiss: DOJ-OppToBLAGMtD.pdf
- Golinski's Motion for Summary Judgment: Golinski-MfSJ.pdf
[NOTE: This post was edited and expanded after initial posting, with final changes made at 1:30 a.m. July 2.]