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Written by Lisa Neff, Staff writer
Jul 14, 2011
The U.S. Justice Department on July 1 filed a legal brief that maintains hostility toward gays and lesbians was the motivation for passing the Defense of Marriage Act, which “unconstitutionally discriminates.”
Justice attorneys filed the brief in federal court in San Francisco, which has jurisdiction over a lawsuit claiming the government wrongly denied health benefits to the same-sex spouse of a government employee.
The case is Golinski v. United States Office of Personal Management. Lambda Legal and Morrison and Foerster LLP filed the suit on behalf of Karen Golinski, a federal court lawyer denied medical coverage for her wife. The two married in California before voters enacted an anti-gay marriage constitutional amendment.
In 2009, a federal circuit court judge ruled that Golinski should be given family coverage. But the U.S. Office of Personnel Management challenged the order and refused to enroll Golinski’s spouse in the health plan.
Lambda and Morrison sued last year to stop OPM’s interference and then, this spring, amended the case to directly challenge DOMA.
“Karen is being compensated different than her coworkers because her spouse is a woman,” said Morrison attorney Rita Lin. “There is no adequate reason for the federal government to be compensating its employees differently on that basis.”
The Justice Department is supporting that argument, a position that’s in line with the February announcement from Attorney General Eric Holder that the Obama administration would no longer defend Section 3 of DOMA because it is unconstitutional.
DOMA, passed overwhelmingly by a GOP-controlled Congress in 1996, has two primary provisions:
Section 3 defines marriage as the union of a man and a woman for federal purposes, thus requiring the federal government to refuse to recognize legal same-sex marriages and denying married same-sex couples more than 1,200 rights and benefits.
Section 2 gives the leeway to refuse to recognize same-sex marriages legally contracted in other states. Traditionally, a marriage formed in one state is recognized in other states under the Full Faith and Credit Clause of the Constitution.
Holder said in February that the Justice Department would no longer defend Section 3 of DOMA. But he also said the administration would continue to follow the law until it’s either overturned in court or repealed by Congress.
The Justice Department’s brief in the Golinski case states, “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”
The brief details that role, citing government persecution of gays and lesbians over the years, including FBI and Postal Service investigations of government employees, passage of a 1950 Senate resolution to investigate “homosexuals and other sexual perverts” working in the government and Dwight Eisenhower’s executive order adding “sexual perversion” as grounds for dismissal from government service.
Fifteen years ago, there was growing consensus that Hawaii might soon legalize same-sex marriage. Then-U.S. Rep. Bob Barr introduced DOMA in May of 1996, a presidential election year. The Republican Party adopted a plank in its platform that stated, “We reject the distortion of (anti-discrimination) laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions.”
DOMA moved on a fast track – from committee to floor votes to the White House in less than four months. President Clinton signed the bill.
The Justice Department brief in the Golinski case refers to House records stating that DOMA was intended to “defend traditional notions of morality” and “promote heterosexuality” by condemning homosexuality and disapproving of gays and their intimate relationships. Justice attorneys concluded that the congressional record “evidences the kind of animus and stereotyped-thinking that the Equal Protection Clause is designed to guard against.”
Lambda Legal attorney Tara Borelli, who is handling the Golinski case, said Justice’s brief is significant. “The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional.”
“This,” Borelli added, “is a historic shift with enormous significance.”
With the Justice Department’s argument against DOMA, a defense of the legislation is being handled by the House Bipartisan Legal Group, which, despite its name, represents congressional Republicans.
