With West's Promotion, Out Gay Lawyer Delery to Take Helm of Justice Department's Civil Division

Posted by Chris Geidner
February 27, 2012 9:30 PM |

Today, the Department of Justice announced that the lawyer who argued against the constitutionality of the Defense of Marriage Act in court this past December, Tony West, was being named to the No. 3 spot at Justice, with out gay DOJ lawyer Stuart Delery being promoted to take West's spot as the head of the Civil Division at DOJ.

DOJ.pngIn a news release, Attorney General Eric Holder praised the two attorneys, saying, "Tony and Stuart have served the department with professionalism, integrity and dedication, and both bring a wealth of experience to their new positions. I'm confident they will provide invaluable leadership and will play a critical role in furthering the department's key priorities and fulfilling its traditional missions."

West will be the acting associate attorney general, and Delery as acting assistant attorney general for the Civil Division. The Civil Division, according to DOJ, represents the United States, its departments and agencies, members of Congress, Cabinet officers, and other federal employees in any civil or criminal matter within its control. These include cases involving national policies and significant litigation that is "so massive and span[s] so many years that [it] would overwhelm the resources and infrastructure of any individual field office."

According to today's release, Delery came to the Department in January 2009 and had first served as chief of staff and counselor to the deputy attorney general. Later, Delery served as associate deputy attorney general, where he coordinated DOJ's preparation of the federal lawsuit against Arizona's immigration law. Since August 2010, Delery has served as senior counselor to Attorney General Holder, including serving as a member of the DOJ's Affordable Care Act litigation team.

delery.jpegDelery (pictured, left) and his partner, Richard Gervase, are raising two sons, as Metro Weekly reported in 2007. Gervase is a board member of Rainbow Families DC, an organization that supports and connects LGBT parents and prospective parents in the D.C. metropolitan area. Delery, prior to joining the Justice Department in January 2009, had been a partner at Wilmer Cutler Pickering Hale and Dorr, LLP. At Wilmer Hale, Delery had provided pro bono counsel to Servicemembers Legal Defense Network -- including in a case challenging the constitutionality of "Don't Ask, Don't Tell," Cook v. Gates.

In the appeal of that case in 2006, for which Delery served as counsel of record, in arguing why DADT should be found unconstitutional, he wrote of the legal landscape after the U.S. Supreme Court had overturned all sodomy laws in Lawrence v. Texas in 2003:

"In overturning Bowers [v. Hardwick], the Court made clear that all adults, regardless of their sexual orientation, possess a constitutionally protected liberty interest in determining how to conduct their private lives in matters pertaining to sex. Lawrence, moreover, was about more than sex. The decision's language and holding evince a clear concern not only with the privacy of the bedroom, but also more broadly with the equal legal dignity to which gay persons are constitutionally entitled. Taken together with Romer v. Evans, Lawrence means that the government may not demean the lives of gay persons by enacting laws that infringe their fundamental liberties or treat them as a separate, secondary class."

That, more or less, is now the position of the U.S. government, as enunciated by DOJ in several ongoing challenges to the constitutionality of the Defense of Marriage Act's federal definition of marriage. Those include a case brought by SLDN in which DOJ recently announced it would not be disputing the DOMA claims and West's argument in December 2011 to a federal trial court that decided this past week that Section 3 of DOMA is unconstitutional.

Then, in arguing that DOMA's federal definition of marriage should not force Karen Golinski -- a federal court employee -- to be denied equal health benefits to cover her wife, West told the court, "What is at issue is whether or not the federal government can use sexual orientation as the basis to grant health benefits to some legally married couples, yet deny them to others."

West, on behalf of DOJ, argued that the federal government cannot.

West will take on his new role upon the departure of Associate Attorney General Thomas Perrelli, at which time Delery will take West's role.

[Photo: Delery (Photo via Findlaw.)]


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