Obama’s Decision Not to Defend DOMA, One Year Later
A year ago today, the announcement about the Defense of Marriage Act came by way of a letter from Attorney General Eric Holder to House Speaker John Boehner (R-Ohio).
“After careful consideration, including a review of my recommendation,” Holder wrote, “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.”
Three hundred and sixty four days later, U.S. District Court Judge Jeffrey S. White agreed.
White — who has served as a federal judge for the past decade after being nominated by then-President George W. Bush in 2002 — issued his order and opinion finding Section 3 of DOMA unconstitutional in a case brought by Karen Golinski, a federal court employee seeking equal health insurance coverage for her wife.
The case, although not at issue in the initial Holder letter, has become a touchstone of sorts for the ongoing developments about the way the government is dealing with the 1996 law.
When Holder announced his and President Obama’s decision, Boehner soon took action to defend the law. Convening the Bipartisan Legal Advisory Group — a five-member body of House leaders controlled by the Republican majority — the body authorized the House counsel to defend the federal definition of marriage in ongoing challenges, including Golinski’s case, in which she is represented by Lambda Legal Defense and Education Fund.
On July 1, 2011, the arguments sketched out in Holder’s six-page letter were expanded to a 31-page filing in Golinski’s case that laid out, in expansive terms, the U.S. government’s “significant and regrettable role” in discrimination in America against gays and lesbians.
The filing did more than simply acknowledge the federal government’s role in discrimination, it explained precisely what the federal government had done. Detailing specific instances of anti-gay and anti-lesbian discrimination, the brief described the 1950 Senate resolution seeking an “investigation” into “homosexuals and other sexual perverts” in government employment and President Dwight Eisenhower’s executive order adding “sexual perversion” as a ground for “possible dismissal from government service.” It also went on to detail 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.”
When oral arguments were held on Dec. 16, 2011, on the arguments advanced by Golinski, the Department of Justice and BLAG in her case, DOJ sent the head of the civil division, Assistant Attorney General Tony West, to argue its position. It was, a DOJ spokesperson said at the time, only the second time that West appeared in court as assistant attorney general to argue a case.
Speaking to White, West said at the hearing that “Congress gets to draw the lines [of which benefits it wants to give], but it can’t draw those lines in a way that is arbitrary or discriminatory and disfavors a group which may be unpopular, which is what’s happening with here with the Defense of Marriage Act.”
West told White: “I think the question is squarely whether the federal government can use this classification to make determinations amongst otherwise similarly-situated legally married couples.”
Acknowledging the couple’s legal status, West said, “Ms. Golinski and her wife are already married. So, the only question is whether or not the federal government has a good reason to be able to make these distinctions, to draw these lines.
“And, we think the federal government does not,” he concluded, according to the transcript of the hearing.
Less than 10 weeks later, White issued his opinion.
Addressing the arguments made in Golinski’s case by BLAG, White wrote, “BLAG argues, but does not explain how denying marriage benefits only to same-sex couples will somehow make marriage between opposite-sex couples better. The proffered justification may derive from strongly-held religious or fundamentally traditional beliefs, but still does not provide a legally recognizable rational basis for sustaining a law that actively discriminates against legally married couples. The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages.”
Accordingly, as Holder told Boehner a year ago today, White concluded that exclusion of same-sex couples is unconstitutional.
“In this matter,” White wrote, “the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.”
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