Justice Department ratchets up gay rights defense with anti-DOMA Golinski brief

The battle between the Obama Administration and House Republicans over the Defense of Marriage Act (which has come to include GOP state attorneys general like Colorado’s John Suthers) took an historic turn last week. Responding to a filing brought by lawyers on behalf of House Republicans and led by conservative legal eagle Paul Clement, the Department of Justice clearly sought to bury a stake deep into the heart of the the act, delivering an expansive brief outlining for the first time the federal government’s role in singling out gay and lesbian Americans for discrimination (pdf). Chris Geidner, writing legal analysis at MetroWeekly’s progay PoliGlot blog, called the brief a “must read” and “instantly historic” and “the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people.”

Some sentences in the brief will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination, most notably when the Justice Department acknowledged, “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” The Justice Department goes on to spend two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay.

Gedner wrote that as part of a near breathless post today, the second he has written on the brief since Friday.

Karen Golinski is a federal court employee in San Francisco who sued the government for denying her access to equal health benefits for her wife.

The House Republican Defense of Marriage legal team filed a suit in June asking the San Francisco court to throw out the lawsuit.

The Department of Justice brief responding to that request for dismissal is signed by Christopher Hall. It lays out the case in detail for why the Obama Administration believes DOMA is unconstitutional and so decided to stop defending the act in court earlier this year. Attorney General Eric Holder sent a letter to House Speaker John Boehner in February announcing the decision but making a comparatively cursory statement as to why.

Now that letter almost appears as bait that Boehner and Republicans latched onto for political advantage without seriously considering that the administration had committed itself to the historic move based on a trove of material well combed over and perhaps held in reserve to make a more lasting and deadly case in court.

As Geidner put it,

Today’s filing does more than acknowledge the federal government’s role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an “investigation” into “homosexuals and other sexual perverts” in government employement and President Dwight Eisenhower’s executive order adding “sexual perversion” as a ground for “possible dismissal from government service,” in the brief’s words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such “perversion” … The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination…

“[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional.”

Geidner lauds Obama for holding back referring to this brief over the last weeks as the New York gay marriage law was being debated and as Obama was being grilled on his “evolving” stance on the topic. Obama refused to taint the brief, Geidner argues, by using it as a shield and deserves credit for leaving the brief to come out in its proper context and deliver greater punch as a result.

[T]his brief was being researched and written as Obama himself was taking some pretty hard hits – and repeated questions – about his commitment to equality due in large part to his ”evolving” status and unwillingness to publicly embrace marriage equality. By not trotting out the brief in the midst of that criticism and waiting until after the White House LGBT Pride Month Reception to file, however, the administration made a strong statement that this brief was just that – a legal filing removed from and independent of the political debate.

No major press has yet to report reactions from Boehner or the House GOP DOMA-defending legal team.

Minority Leader Nancy Pelosi has asked Boehner detailed questions about the contract arranged between House Republicans and the attorneys they hired to defend DOMA. She asked whether the contract was reviewed by the ethics committee, how costs were determined and how the $520 an hour rate of pay was agreed upon. Boehner had earler asked Pelosi to support Congress redirecting funds from the justice department to pay for the DOMA lawyers.

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