Hundreds of Associations, Elected Officials, Legal Scholars and Others Urge Ninth Circuit to Find DOMA Unconstitutional

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Signatories Include: 132 members of Congress; 70 companies, trade associations, cities and law firms; the State of California; public interest, religious, labor and civil rights organizations; and dozens of historians and law professors
July 11, 2012

(San Francisco, July 11, 2012) -- Hundreds of representatives from businesses, trade associations, labor unions, public interest and advocacy organizations, cities and states, law firms and legal scholars, and members of the U.S. House of Representatives have joined one of 13 friend-of-the-court (amicus curiae) briefs urging the U.S. Court of Appeals for the Ninth Circuit to uphold the U.S. District Court ruling in Golinski v. OPM finding Section 3 of the so-called Defense of Marriage Act (DOMA) unconstitutional.

"Each of these briefs, and the impressive roster of signatories, underscores the myriad ways in which DOMA not only harms loving couples and families, but also impacts businesses, employees and the efficient conduct of state and local government," Lambda Legal Staff Attorney Shelbi Day said. "What these briefs make clear is that DOMA is both discriminatory and burdensome, unjustly stigmatizing one segment of the population while at the same time increasing the cost of doing business. Clearly, it is time to put DOMA out of its—and our—misery."

The 13 friend-of-the-court briefs filed yesterday include:

House of Representatives Amicus Brief: Joined by 132 members of Congress, including House Minority Leader Nancy Pelosi and Minority Whip Steny H. Hoyer. Pelosi and Hoyer are members of the House Bipartisan Legal Advisory Group (BLAG) who dissented from BLAG's decision to defend DOMA after the U.S. Department of Justice announced last year it would no longer defend the discriminatory statute;

Businesses, Professional and Municipal Employers and Professional, Trade and Civic Organizations Amicus Brief: Joined by 70 companies, law firms, trade organizations and cities setting forth the ways that DOMA harms employers, including forcing them to discriminate among their employees in the benefits provided, because employees married to same-sex spouses are ineligible for numerous federal benefits that depend on marriage status, or incur costly workarounds; bear the costs and administrative burdens associated with dual treatment of married employees; administer two sets of benefits and policies; and incur the direct costs of "grossing up" salaries to compensate for tax disadvantages. Signatories include, among others: 40 companies, including Broadcom Corporation; CBS Corporation; eBay Inc.; Gap Inc.; Google Inc.; Levi Strauss & Co.; Kimpton Hotel & Restaurant Group, LLC; The McGraw-Hill Companies; Microsoft Corp.; Viacom Inc.; ZipCar, Inc.; 18 law firms; four trade and civic associations; the City and County of San Francisco; and the cities of Los Angeles, Santa Monica, Boston, New York, Cambridge, Seattle, and West Hollywood;

State of California Amicus Brief: Arguing that DOMA is an impermissible encroachment on the state's sovereign right to define marriage and violates the Equal Protection Clause;

American Psychological Association Amicus Brief: Joined by the American Psychiatric Association, the American Medical Association, the American Academy of Pediatrics, the American Psychoanalytic Association, the National Association of Social Workers and its California Chapter, and the California Psychiatric Association, arguing that there is consensus in the social science community that lesbians and gay men are just as good of parents as heterosexual people, there is no scientific basis for excluding lesbians and gay men or same-sex couples from parenting, and that excluding same-sex couples from marriage is stigmatizing;

Women’s Rights Groups Amicus Brief: Joined by Legal Momentum, the California Women's Law Center and Legal Voice, arguing that DOMA constitutes sex discrimination under the Equal Protection Clause;

Public Interest and Legal Service Organizations Amicus Brief: Joined by 29 advocacy organizations including: American Civil Liberties Union Foundation of Northern California; Gay & Lesbian Advocates & Defenders; National Center for Lesbian Rights; Asian Pacific American Legal Center; Equality California; Equality Federation; Equal Justice Society; Freedom to Marry; Human Rights Campaign; Hispanic National Bar Association; Japanese American Citizens League; Mexican American Legal Defense and Educational Fund; and Southern Poverty Law Center. Argues that classifications based upon sexual orientation are suspect and should be evaluated under a heightened scrutiny standard;

Religious Organizations Amicus Brief: Joined by the Anti-Defamation League (ADL) and 20 others representing a wide spectrum of faith traditions and arguing that DOMA violates the First Amendment Establishment Clause because it furthers the purpose and ideals of one religious group over others and asserts that moral disapproval of a group does not constitute a legitimate government interest;

Labor Unions Amicus Brief: Joined by the AFL-CIO, Change to Win and the National Education Association, arguing that DOMA impedes labor unions' fair representation of all members and denies workers who are married to a same-sex spouse access to the same benefits and protections as are other married couples;

Historians Amicus Brief: Signed by 23 historians of American marriage and family law, setting out the history of marriage in the United States, including the purposes of marriage, and explaining that, in stark contrast to DOMA, control of marital status has always been reserved to the states despite considerable diversity in laws pertaining to marriage and even during periods of serious contestation between states;

Family Law Professors Amicus Brief: Signed by 17 leading family law scholars, arguing that DOMA is the first and only federal law to create a blanket rule of non-recognition of marital status in contravention of state family law;

Family and Child Welfare Law Professors Amicus Brief: Signed by 26 of the leading family and child welfare law professors throughout the U.S., arguing that BLAG's asserted justifications for DOMA cannot survive constitutional scrutiny and DOMA undermines child welfare interests;

Bay Area Lawyers for Individual Freedom (BALIF) Amicus Brief: Joined by 12 local and LGBT bar associations across California, arguing that DOMA harms same-sex spouses by excluding them from the federal rights and benefits associated with marriage and asserting the specific harms DOMA has on the legal profession;

Citizens for Responsibility and Ethics in Washington Amicus Brief: Arguing that DOMA undermines federal ethics laws and regulations pertaining to government, frustrates anti-avoidance provisions in the tax code, and frustrates protections for creditors in the tax code.

Golinski v. OPM is a lawsuit filed in the U.S. District Court for the Northern District of California in January 2010 by Lambda Legal and Morrison & Foerster on behalf of Karen Golinski, a federal court employee who sought to enroll her spouse, Amy Cunninghis, in the employee health plan. On February 22, 2012, U.S. District Court Judge Jeffrey S. White ruled for Golinski and found Section 3 of DOMA unconstitutional. Two days later, the Bipartisan Legal Advisory Group (BLAG) appealed Judge White's ruling to the U.S. Court of Appeals for the 9th Circuit. Yesterday's amicus briefs were filed in support of Lambda Legal and Morrison & Foerster's response to the BLAG appeal. Oral argument before the Ninth Circuit is scheduled for September 10. The Department of Justice also has filed a petition with the U.S. Supreme Court seeking review of Judge White’s ruling—the High Court is currently in recess and the petition will likely be considered this fall.