Justice Dept.: Strike Down DOMA

By Trudy Ring

Originally published on Advocate.com July 03 2011 8:50 PM ET

The Department of Justice Friday gave pro–marriage equality activists a pleasant surprise by arguing strongly against the Defense of Marriage Act in a brief filed in federal court that acknowledges the history of discrimination against gays and lesbians.

The brief urged a U.S. appeals court in San Francisco not to dismiss federal employee Karen Golinski’s (pictured, right) lawsuit against the U.S. Office of Personnel Management seeking benefits for her wife, Amy Cunninghis (left), and instead to find DOMA unconstitutional. The brief is in keeping with the position the Obama administration had taken on DOMA, which bans federal recognition of same-sex marriage, but it shows the administration taking a more active role in the case than expected, observers said.

“Unlike in other cases where DOJ has stopped defending DOMA,” lawyers for the department “made an expansive case in a 31-page filing that DOMA is unconstitutional,” Metro Weekly reports. Previously, the Justice Department had simply attached a letter issued in February by Atty. Gen. Eric Holder saying that the administration would no longer defend the law. Before the administration took that position, the Justice Department had argued for the dismissal of Golinski’s case.

With President Obama’s administration no longer defending DOMA, Republicans in Congress took up defense of the antigay law, hiring a private attorney to do so. Friday’s Justice Department filing was in response to a June 3 filing by that lawyer, Paul Clement.

In the brief the department makes its case “in terms unparalleled in previous administration statements,” Metro Weekly notes. The filing acknowledges that “gays and lesbians have been subject to a history of discrimination” in which “the federal government has played a significant and regrettable role.” It says that because of this history, courts should apply a high level of scrutiny to laws that discriminate against this group. It also calls sexual orientation an “immutable characteristic.”

LGBT activists hailed the filing. Human Rights Campaign president Joe Solmonese issued a statement saying, “The administration’s decision to call DOMA what it is — a law that serves no purpose but to single out a group of people for second-class status — was a watershed moment in the fight for LGBT equality. Now the federal government has taken that historic stand a step further and put real meat on the bones of why there is no basis for DOMA to stand. This step represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.”

Tobias Barrington Wolff, a law professor at the University of Pennsylvania who has advocated for LGBT rights, told the Associated Press that the brief “represents the concrete manifestation of a complete paradigm shift in the federal government’s position on antigay discrimination and the constitutional rights of married same-sex couples.”

Also Friday, Golinski’s lawyers filed a motion for summary judgment in the case, saying the facts were not in dispute and that the court should decide it on legal issues alone. Read more here.