DOJ Asks for Court Review of DOMA

In an unexpected move that may well expedite the U.S. Supreme Court's consideration of the Defense of Marriage Act, the Obama administration, last week, through the Department of Justice, asked the high court to review a pair of cases challenging DOMA's constitutionality.

The first case is Golinski v. Office of Personnel Management, a San Francisco case that is currently before the 9th U.S. Circuit Court of Appeals.

Although briefing of Golinksi continues, with oral arguments scheduled for the week of September 10, DOJ has asked the Supreme Court to take up the case anyway.

Earlier this year in a win for gay rights, the 9th Circuit ruled on February 22 that Section 3 of DOMA is unconstitutional, finding the 1996 law "violates [the plaintiff's] right to equal protection."

In his opinion, Judge Jeffrey White found that Section 3 could not pass either the "rational basis" or "heightened scrutiny" test. The latter is the more rigorous legal analysis.

The case dates from 2008 when lesbian attorney Karen Golinski, then a 19-year employee of the 9th Circuit, applied for health care benefits for her wife, but was denied the request.

Initially White dismissed the suit on procedural grounds, but invited Golinski to amend her January 2010 complaint to challenge DOMA Section 3's constitutionality. She did so on April 14 of that year.

Even before the district court ruling, moreover, Attorney General Eric Holder announced on February 23, 2011 that DOJ would no longer defend DOMA, but would continue to enforce it.

Lambda Legal Defense and Education Fund brought the Golinski case. And in response to DOJ's request for Supreme Court review, Lambda Legal staff attorney Tara Borelli issued a statement.

"This development highlights the desire by all, the government included, to resolve this issue quickly," she said. "DOMA's days are numbered."

Meanwhile, the Republican-controlled House of Representatives, through its Bipartisan Legal Advisory Group, has hired an attorney to defend the law in court.

The second case is Massachusetts v. Department of Health and Human Services, currently in the 1st Circuit where a three-member appellate panel of judges upheld a lower court ruling, which found Section 3 to be unconstitutional on the less rigorous legal analysis of rational basis.

On June 29, BLAG asked the Supreme Court to review Massachusetts . (Both the attorney general of the state and Gay and Lesbian Advocates and Defenders filed separate suits that were upheld in both district and appeals court findings.)

If the Supreme Court takes up either case (Golinski or Massachusetts ) or both in its October conference, oral arguments could take place this fall. Right now the court is in summer recess.

In its filings DOJ said it is seeking Supreme Court review so that the constitutional "question may be settled authoritatively."

DOJ and Lambda Legal argue that heightened scrutiny applies. As DOJ explains in its filings, "Because the denial of federal benefits to same-sex couples who are legally married under their state's laws bears no substantial relationship to any important governmental purpose that motivated Section 3's enactment."

DOJ also points to Section 3's failure even on the lesser legal analysis of rational basis "because Section 3 is not rationally related to any conceivable legitimate interest of the federal government."

Altogether, DOJ argues, "This case squarely raises important questions about the Constitution's equal protection guarantee as it applies to a federal distinction among persons who are legally married under their state's laws on the basis of sexual orientation."

This week, in yet another DOMA development, 132 House members filed a friend of the court or amicus brief in the Golinski case. The brief argues that heightened scrutiny applies insofar as gay men and lesbians as a minority group lack sufficient political power to gain favorable treatment by lawmakers.

Additionally, the brief states that gay men and lesbians are, historically, a disfavored minority. Consequently, they are often targeted legislatively on the basis of stereotypes and bias. Therefore, laws like DOMA, singling out gay men and lesbians for harm, warrant judicial skepticism and more rigorous legal analysis and review.

House Minority Leader Nancy Pelosi (D-San Francisco), Representative Jerrold Nadler (D-New York), Democratic Whip Steny Hoyer (D-Maryland), and Assistant Democratic Leader James E. Clyburn (D-South Carolina), among others, took the lead in filing the brief, which highlights that House members are not of one mind on DOMA's constitutionality.

Joining House leadership in signing onto the brief are openly gay Democratic Representatives Barney Frank (Massachusetts), Tammy Baldwin (Wisconsin), Jared Polis (Colorado), and David Cicilline (Rhode Island).