House Lawyers Step Up Defense of DOMA
June 6, 2011 by Brian Moulton, Legal Director
Late Friday, Paul Clement and other attorneys representing the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives filed a motion to dismiss a challenge brought by Karen Golinski, an employee of the U.S. Court of Appeals for the Ninth Circuit, who is seeking equal benefits for her wife, who she married in California before the passage of Proposition 8. Golinski filed suit, represented by Lambda Legal, in federal district court in San Francisco, arguing that the denial of the benefits under the Defense of Marriage Act (DOMA) violates the U.S. Constitution. Now that the Justice Department is no longer defending the constitutionality of DOMA in her case, the BLAG’s lawyers have stepped in to spend your taxpayer dollars defending discrimination.
Unlike the Justice Department lawyers, who had disavowed the most offensive justifications for DOMA in their defense of the law, the BLAG’s brief stresses that in passing DOMA Congress emphasized “again and again the enormous importance of marriage for civilized society,” meaning of course only marriage between a man and a woman, “because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children.” While Congress made these findings nearly 15 years ago, and the legal and social landscape of marriage for same-sex couples across this country has drastically changed, the BLAG lawyers argue that such sustained discrimination against same-sex couples is constitutional because previous court cases have held that it is and because marriage for same-sex couples is not a fundamental right.
As you may recall, a core part of the Justice Department’s decision to no longer defend DOMA was its conclusion that laws that treat people differently because of their sexual orientation should be subject to a higher level of scrutiny by the courts. The BLAG brief goes out of its way to disagree, arguing that gays and lesbians do not belong to a group, known as a suspect or quasi-suspect class, that should be judged by that rigorous standard. While the House’s lawyers do not delve deeply into why that is so –contending that the federal appeals court that covers California has already decided the issue—they do snidely suggest that the recent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and the Don’t Ask, Don’t Tell Repeal Act are evidence that gays and lesbians are politically powerful and thus discrimination against them doesn’t require closer examination. It is truly perverse to argue that obtaining basic protections against hate violence and rolling back a law that affirmatively discriminated against gay and lesbian service members, both after more than a decade of tireless effort, constitutes such power that the courts need not treat anti-gay laws seriously.
Friday’s brief is, no doubt, just a preview of what is to come. The BLAG has stepped in to defend DOMA in numerous challenges, including in courts where it cannot hide behind existing cases to argue that anti-gay laws don’t deserve heightened scrutiny. There, they will have to argue why they are not – including that sexual orientation is relevant to a person’s ability to contribute to society, that gays and lesbians have not been subject to a history of discrimination, or even that sexual orientation can be changed. Stay tuned as the anti-gay rhetoric, and the costs of defending this heinous law, rack up.