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Darwin Would Recognize This Process

Darwin Would Recognize This Process

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Last Friday, as commuters were heading off to start their Independence Day weekends, the Obama administration's Justice Department took a step long urged by legal scholars and gay rights advocates. The government's lawyers filed a brief in federal court asking that the so-called Defense of Marriage Act be ruled unconstitutional. It did so in Karen Golinski's case seeking equal health insurance for her wife.

As an employee of the federal court of appeals serving California and other Western states, Karen could have accessed that employment benefit easily nearly three years ago, when she and Amy Cunninghis married, if only she were a man. But because she's a woman, Bush administration personnel staff rejected her application, citing DOMA. From a political and legal standpoint, it came as no surprise. But when the Obama administration took the same approach in early 2009 and defended DOMA in court using arguments only slightly "evolved" from those of Bush's lawyers, it shocked LGBT activists and politicos alike.

But Obama's self-professed "evolution" has progressed, if not as quickly as some advocates would wish. And in February, Atty. Gen. Eric Holder marked a critical shift when he informed House speaker John Boehner that the administration no longer would defend DOMA, having concluded it is indefensible when assessed with the right constitutional measuring stick. Holder explained the Department of Justice's reasoning in a concise public letter. This just-filed legal brief puts substantial additional flesh on the analytical bones of Holder's February statement.

The brief makes worthwhile reading for many reasons. First, it gives a detailed, powerfully worded explanation of why courts should view antigay laws with suspicion, putting the burden of proof on the government rather than on those targeted for unequal treatment. Key in that is a lengthy recounting (or, perhaps, confession) of the systematic mistreatment of lesbian, gay, bisexual, and transgender people -- over the course of decades -- by the federal government and others. In this historical survey, DOJ repeatedly relies on Williams Institute research, along with other leading scholarship and authoritative government reports. It highlights, for example, the FBI's extensive practice of searching for gay people through police tips and information about gay bars and by intercepting private citizens' mail, and it shows how discriminatory practices first implemented by the U.S. government soon were replicated by state, local, and private employers. Eventually, these practices and purges affected more than 20% of the U.S. workforce.

In addition to this history of discrimination, DOJ's brief also surveys the religious and other legally improper reasons for that mistreatment. And it underscores that the needs of children are served by supportive treatment of all married parents, not by federal discrimination against some of them. The "needs of children" point in this brief is likely to have considerably more impact than the same point did in earlier DOJ filings in DOMA cases because those recommended a weak constitutional analysis and reached a clearly mistaken conclusion about DOMA. It may seem a small step from DOJ saying, in effect, "The needs of children don't justify DOMA because gay people make fine parents, but something else does justify it," to saying "The needs of children are an important part of why DOMA is invalid." But the pivot on this central issue -- one about which poor-quality research and antigay propaganda together have caused widespread confusion and great damage over generations -- signals that this is a transitional moment.

DOJ made this shift based on what authoritative research has shown for years. The brief cites the positions taken by the American Academy of Pediatrics and the American Psychological Association, among others, all of which oppose restrictions on parenting by lesbians and gay men because extensive, peer-reviewed scientific studies have established that children raised by gay parents are as well-adjusted as those raised by heterosexuals. Indeed, expert voices have been debunking the "risks to children" claims in same-sex-relationship cases for ages now -- perhaps most centrally in the Iowa marriage case, the federal Proposition 8 case, and in the just-filed New Jersey marriage case. But having the U.S. Department of Justice rely on this extensive social science evidence will have immense influence both legally and socially -- perhaps politically too.

Although this brief is a consistent next step from the position taken in February, it's the first time DOJ has laid out a full articulation -- in a court case -- of why DOMA is unworthy of defense. It's also reassuring to some who were frustrated by the president's comments last week that he wants to see equal treatment of LGBT people but is not prepared (yet) to move beyond his limited, "states' rights" approval of New York's marriage vote -- a view that suggests he not only approves of New York but would similarly approve of other states withholding marriage from same-sex couples by simple popular vote.

With these and other questions begging further answers, DOJ's Golinski brief is a singularly significant development. It puts the administration's clout and resources where the president's friendly words have been. And while this brief is just a fuller rendition of what was said in February, it was not at all assumed that the administration would participate actively in the various DOMA challenges. Rather, many expected the administration to sit on the sidelines, as former California governor Arnold Schwarzenegger, current governor and former attorney general Jerry Brown, and current attorney general Kamala Harris have done in the Prop. 8 federal litigation. And while the plaintiffs' lawyers in the many DOMA cases have been pressing forward well, it can only be a great boost to have the Justice Department actively pulling in the same direction.

Now that this brief has been compiled, approved, and filed, it seems likely that something similar will be filed in some, if not all, of the other DOMA cases. That would make sense, since John Boehner's legal team will be present and vigorous. And the courts should have the benefit of the history, social science, and legal analysis that document the government's past discrimination and show that DOMA serves none of its claimed goals, while inflicting considerable harm. Of course, the ultimate decision in this and all the DOMA cases is for the courts. Having this informed perspective surely will assist them, though.

The brief already has shown its influence in a different federal court considering a different federal discrimination question. Within two business days of its filing, DOJ's Golinski brief apparently inspired the Ninth Circuit Court of Appeals to act in the Log Cabin Republicans' challenge to the "don't ask, don't tell" military policy. The appeals court previously had ordered that the policy remain in force during the appeal and put on hold the trial court's order barring enforcement of the policy worldwide. But the Ninth Circuit now has reconsidered in light of the analysis DOJ recommended in Golinski, along with the military's nearly complete preparation for the policy's repeal. Wednesday's Ninth Circuit order directs the government to comply with the trial court's directive and cease enforcement of "don't ask, don't tell" between now and late August, when the circuit will hear arguments in the administration's appeal.

Whether it's leaders within the executive branch, Justice Department lawyers, members of Congress, judges, voters, or Jane and Joe (or Jolene) on the street, being willing to consider new information -- including relevant research -- and rethink past positions nearly always is the stuff of wisdom and responsible citizenship. It's what we all should ask, and expect, of each other.

It's what the Obama administration has been doing, and what a distance has been traveled -- from the lack of response to Karen Golinski's equal benefits claim and DOJ's first briefs reflexively defending DOMA to setting a properly rigorous constitutional bar for all antigay laws and government policies and laying out plainly why DOMA does not pass. That analysis already is influencing other cases and many lives on military bases.

The administration seems to have created a small tradition of making strides during Gay Pride season. And even if this one was dictated by a court calendar rather than the LGBT movement's birthday, and even if some consider it long overdue, still, it is strong, unequivocal, eloquent, and very much a milestone.

Jennifer Pizer is the legal director and Arnold D. Kassoy senior scholar of law at UCLA Law School's Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.
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