Originally published on Advocate.com December 21 2011 11:35 AM ET
On Friday in San Francisco, the Justice Department will make its first court appearance in a lawsuit challenging the Defense of Marriage Act since the Obama administration declared in February that the 1996 law is unconstitutional.
Karen Golinski, an attorney and employee of the U.S. Court of Appeals for the ninth circuit, sued the federal government in January 2010 after she was denied spousal health benefits for her wife, Amy Cunninghis (Golinski is represented in the case by Lambda Legal).
A few months prior, Ninth Circuit Chief Justice Alex Kozinski had administratively ruled that Golinski was entitled to spousal health benefits. However, the U.S. Office of Personnel Management subsequently announced via press release that it would not comply. Citing DOMA, which defines marriage for the purposes of federal benefits to the exclusion of same-sex couples, government officials said they lacked the legal authority to extend such benefits to Golinski.
But in July, several months after the Obama administration’s announcement that it would no longer defend the antigay law in court, the Justice Department filed a brief in Golinski’s suit opposing dismissal of the case and thoroughly articulating its arguments as to why DOMA is unconstitutional.
The Republican-led House Bipartisan Legal Advisory Group, which has intervened in multiple DOMA lawsuits, had by then stepped in to defend the law in the Golinski case. Attorneys for the BLAG, also making their first appearance at a DOMA case hearing, will argue Friday that DOMA is constitutional and should be upheld.
Tony West, assistant attorney general of the Justice Department’s civil division, told The Advocate that his Friday arguments in federal district court will center on why Section 3 of DOMA, which bars federal recognition of same-sex marriages, should be subject to heightened judicial scrutiny — in part given the long history of discrimination against gays and lesbians in the United States.
“This issue is really about whether the federal government, in distributing health insurance benefits, can pick and choose on the basis of sexual orientation when deciding whom to confer benefits,” West said. “Here is a married couple who, for all intents and purposes, is the same as anyone else, with one distinguishing characteristic, and that is sexual orientation.”
Golinski's case squarely presents the discriminatory issue and “highlights the reasons that led the Attorney General and the President to conclude that Section 3 of DOMA is unconstitutional,” West said.
Earlier this week, U.S. district judge Jeffrey S. White issued a two-page list of questions to attorneys on DOMA’s constitutionality and whether the law should be subjected to heightened scrutiny. Among them to be addressed Friday in court:
—How does treating some state sanctioned marriages different from others promote consistency or maintain the status quo?
—How does the withholding of federal benefits to children of families with same-sex parents encourage responsible parenting and child-rearing?
—Is the [Bipartisan Legal Advisory Group] actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?
—How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?
Also to be argued Friday is whether the federal courts have authority to determine what level of judicial scrutiny applies to DOMA, which federally defines an institution that has historically been controlled by individual states.
Citing Romer v. Evans, where the U.S. Supreme Court struck down an amendment to the Colorado state constitution that prohibited antidiscrimination laws or policies protecting gays and lesbians, Tara Borelli, a Lambda staff attorney representing Golinski on Friday, said, “There is solid footing for the court to see this as an unprecedented event that requires particularly careful scrutiny.”