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Another strike against DOMA

July 5, 2011

The Task Force applauds the U.S. Department of Justice’s filing of a legal brief that argues that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.

The brief was filed in the case of Karen Golinski, a staff attorney of a federal court in California whose wife was unable to be added to her insurance policy because the federal government does not recognize her marriage under DOMA.

In the brief, the Department of Justice (DOJ) argues that DOMA violates the constitutional guarantee of equal protection of the laws because laws that discriminate on the basis of sexual orientation should be subject to “heightened scrutiny.” The brief follows a previous DOJ report that supported “applying heightened scrutiny in the context of discrimination by law enforcement on the basis of sexual orientation and gender identity [because of] a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (‘LGBT’) individuals.”

Applying Supreme Court precedent to determine whether classifications should be subject to this higher standard, the DOJ’s brief notes that gays and lesbians exhibit “immutable characteristics” that distinguish them as a group, gays and lesbians are “minorities with limited political power,” and sexual orientation “bears no relation to legitimate policy objectives.”

Perhaps most importantly, however, the DOJ brief recollects the history of discrimination that lesbians and gays have faced at the hands of all levels of government and in the private sector. The brief explains the pervasive employment discrimination to which federal, state and local governments have subjected lesbians and gays; the criminalization of gay and lesbian sexual conduct and its implications on child custody and visitation; and the policing of lesbian and gay spaces in the form of bar raids.

The brief goes on to note the political resistance to nondiscrimination measures including the passage of Amendment 2 in Colorado, a ballot measure that eliminated all local and state nondiscrimination provisions but was ultimately found to be unconstitutional by the U.S. Supreme Court. In the brief, the DOJ also states “private discrimination against gays and lesbians is pervasive and continues to this day.”

The brief’s argument concludes by finding that Section 3 of DOMA, which prevents federal recognition of valid same-sex marriages, fails this “heightened scrutiny” because the law was motivated by “animus” against gays and lesbians and relied on constitutionally impermissible stereotypes. It goes on to note that DOMA does not serve a compelling government purpose because it does not encourage responsible procreation or childrearing and there is no evidence “for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing.”

This brief, filed in the Northern District of California, follows a letter from Attorney General Eric Holder that stated that he and President Obama would no longer defend the constitutionality of DOMA. The brief, however, goes further in laying out a detailed and comprehensive response to a filing by lawyers representing House Republicans who called for the lawsuit to be dismissed.

The District Court is expected to hear oral arguments in September on Golinski’s claim that there are no factual issues in dispute and that Section 3 of DOMA should be struck down as unconstitutional without a full trial.

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