DOJ Delivers Powerful Critique of DOMA in Lambda Legal Case

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"This is a historic shift with enormous significance."
July 5, 2011
Tara Borelli

"DOMA is unconstitutional and there are no reasonable arguments left to defend it."

(San Francisco, July 5, 2011)—On Friday, the U.S. Department of Justice (DOJ) filed a brief strongly arguing that the Defense of Marriage Act (DOMA) is unconstitutional in a case brought by Lambda Legal and Morrison & Foerster LLP on behalf of Karen Golinski, a lesbian federal court employee denied medical coverage for her wife, whom she married when same-sex couples could do so in California. The DOJ had previously announced they would no longer defend DOMA, but this is the first legal filing in the country in which they have fully argued to a court that DOMA is unconstitutional. They asked the federal court not to dismiss Golinski's claim.

The law is still being defended by legal counsel hired by the leadership of the House of Representatives.

"DOMA is unconstitutional and there are no reasonable arguments left to defend it," said Lambda Legal Staff Attorney Tara Borelli who is representing Golinski. "The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional. Lambda Legal has been arguing that for years—it's great to have them on our side. The Department of Justice is living up to its name in seeking to uphold the constitutional guarantee of equality for lesbian and gay people."

The DOJ brief offers a detailed description of the history of discrimination by the government against lesbians and gay men, concluding: "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals." The brief also provides evidence that passage of DOMA in 1996 was motivated by prejudice against gay people. After putting forth a thorough argument that laws that treat lesbian and gay people differently must be subject to heightened scrutiny, the DOJ concludes that DOMA fails to meet the required legal test and is unconstitutional.

"This is a historic shift with enormous significance," Borelli said. "As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment."

Ninth Circuit Chief Judge Alex Kozinski ordered in November 2008 that Golinski should be given family coverage after Golinski filed an internal employment discrimination complaint, but the Office of Personnel Management (OPM), part of the executive branch of the federal government, thwarted those orders and refused to allow Golinski to enroll her spouse for health coverage. Lambda Legal and Morrison & Foerster LLP filed suit in a federal trial court last year seeking to stop OPM's interference with Chief Judge Kozinski's order that Golinski receive equal treatment. Last Friday, Lambda Legal and Morrison & Foerster filed a motion for summary judgment, asking the trial court to make a final ruling in Golinski's favor.

"Unfortunately, this battle isn't over yet," said Rita Lin, an associate attorney at Morrison & Foerster LLP, co-counsel in this case. "The lawyers representing the House leadership are still fighting us in court, and until DOMA is struck down by a court or repealed, Karen Golinski still cannot enroll her wife in her family health plan. She works every day with co-workers who can cover their spouses, but she cannot."

The case is Golinski v. United States Office of Personnel Management and John Berry, Director of the U.S. Office of Personnel Management, in his official capacity.


Contact: Leslie Gabel-Brett Office 212-809-8585 x 245; Cell: 860-214-3557; lgabel-brett@lambdalegal.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.


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