Conservative Federal Judge Strikes Down DOMA

Karen Golinksi legally married her partner Amy in 2008 and literally
 made a federal case of getting health benefits for her spouse

Wow! Clearly, the days for which the so-called Defense of Marriage Act will remain viable in the United States Code are numbered, and appears to be decreasing rapidly. Recall that two weeks ago the 9th U.S. Circuit Court of Appeals struck down Proposition 8. This week, a federal judge named Jeffrey White appointed by Republican president George W. Bush issued an opinion in Golinski v Office of Personnel Management in which he summarily strikes down Section 3 of DOMA as violating Karen Golinski's constitutional right to receive federal benefits based on her legal marriage to her wife Amy.

The case involves Karen Golinski, who married her longtime partner in California in 2008 when same-sex marriage was legal between June and November. She has been an employee of the 9th U.S. Circuit Court of Appeals for decades and so when she got married she asked that her employer put her spouse on her health benefits plan like her heterosexual co-workers have been able to do. As a federal employee, but of the Judicial Branch, her case raised a host of interesting constitutional issues. Chief Judge of the 9th Circuit, Alex Kosinski, twice issued orders to the Office of Personnel Management (in the Executive Branch) to process Golinski's request, which were ignored.

Golinski was represented by MadProfessah friend Tara Borelli of Lambda Legal Defense and Education Fund and pro bono by Morrison Foster. Amazingly, the judge ruled based just on the briefing on motions  for summary judgment (from the good guys) and motion for dismissal (from the bad guys represented by Paul Clement and the House Republican majority led by Speaker John Boehner).

U.S. District Court Judge White's opinion is remarkable for many things, as Ari Ezra Waldman notes at TowleRoad:

First, Judge White declared that discrimination on the basis of sexual orientation merits heightened scrutiny in an equal protection analysis. 

Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights. 

Third, in dismantling the proffered and any conceivable justification for DOMA Section 3, the court authoritatively rejected House Republican attempts to buttress DOMA with recourse to certain conceptions of morality. 

Fourth, Judge White's reliance on the other DOMA cases and Ninth Circuit precedent in other gay rights cases emphasizes the primacy of a federal litigation approach in our quest for marriage recognition.

I encourage you to read the rest of Ari's insightful analysis as well as Chris Geidner's at Poliglot. What is not becoming remarkable is the sight of federal judges ruling that DOMA is unconstitutional. Judge White of the 9th Circuit follows Judge Joseph Tauro of the 1st Circuit who struck down DOMA in July 2010. The decision in Gill v. Office of Personnel Management is still on appeal before the 1st U.S. Circuit Court of Appeals.

133 House Members Sign Brief Challenging DOMA

133 Democratc congressmembers signed their names to a brief filed before the 1st U.S. Circuit Court of Appeals in the case of Gill v Office of Personnel Management in which the central question is whether the  so-called Defense of Marriage Act (DOMA) is unconstitutional.

The case was brought (and won) by Gay and Lesbian Advocates and Defenders before U.S. District Court judge Joseph Tauro in July 2009. The Department of Justice appealed the decision, but then in February 2011 the United States changed sides in the case after the President determined that DOMA is inherently unconstitutional and laws that discriminate on the basis of sexual orientation warrant heightened scrutiny.

DOMA is being defended in federal court by superlawyer Paul Clement for BLAG, the Bipartisan Legal Advisory Group, on behalf of the U.S. House Republican majority.

Hat/tip to Joe.My.God

Boehner Triples Budget For DOMA Legal Defense

Speaker of the House John Boehner (R-OH)

This is pretty astonishing news. While Republicans are repeatedly bloviating about cutting Medicare and Social Security and reducing the size ofthe federal government, that doesn't apparently apply to defending homophobic laws in court.

Joe.My.God reports that the the "Bipartisan Legal Advisory Group" (which is controlled by the Republican House majority) has authorized a new contract with super-lawyer Paul Clement which triples the potential cost of defending the so-called Defense of Marriage Act in federal court.

Talking Points Memo has the details:

House Republican leaders have tripled theamount allocated for a legal team arguing in support of the Defense of Marriage Act (DOMA) from $500,000 to $1.5 million of taxpayer money.

A modified contract between the General Counsel to the House of Representatives and former Solicitor General Paul Clement of Bancroft PLLC sets a cap of $750,000 which can be raised up to $1.5 million.

"It is absolutely unconscionable that Speaker Boehner is tripling the cost for his legal boondoggle to defend the indefensible Defense of Marriage Act," Drew Hammill, a spokesman for Democratic Leader Nancy Pelosi, said in a statement.

"At a time when Americans are hurting and job creation should be the top priority, it just shows how out of touch House Republicans have become that they would spend up to $1.5 million dollars to defend discrimination in our country," Hammill continued.

It should be noted that the Obama administration has concluded that DOMA is unconstitutional and is no longer defending it in court. DOMA has been declared unconstitutional by at least three federal judges this  year, in cases which are still under appeal.

Bush Superlawyer Paul Clement Signs On To Defend DOMA

Paul Clement was U.S. Solicitor General from 2004-2008

U.S. House Speaker John Boehner has decided on former Bush Administration Solicitor General Paul Clement to represent the Congress' interest in defending the so-called Defense of Marriage Act (DOMA) in federal court. Clement is a well-known Supreme Court advocate (he succeeded Perry v. Brown Republican superlawyer Ted Olson in the Solicitor General position) and is rumored to make over 5 million dollars a year at  the law firm of King & Spalding and charge as much as $1,000 per hour. Clement has reportedly argued more than 50 cases before the United States Supreme Court.

Clement's defense will not be cheap, as DOMA has been declared unconstitutional in two cases before the 1st U.S. Circuit Court of Appeals, the Department of Justice has decided that the statute is unconstitutional and there are around 12 jurisdictions in which DOMA is being challenged in court.

Former House Speaker Nancy Pelosi  sent a letter to Boehner in response to the current Speaker's actions, reproduced below:

April 18, 2011

The Honorable John A. Boehner
Speaker of the House 
H-232, The Capitol
Washington, D.C. 20515 

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA).  My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA.  You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law.  As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.  

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel.  Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.  

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York.  Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007.  When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her.  This case is a prime example of the injustice perpetuated by DOMA on millions of American families.  

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee.  Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice.  I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.

The House of Representatives need not enter into this lengthy and costly litigation.  Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.”  As you know, only the courts can determine the constitutionality of a statute passed by the Congress.  

Thank you again, and I look forward to working together with you on behalf of our country.

best regards,


NANCY PELOSI
Democratic Leader

Love her!

House Republican Leaders Vote To Defend DOMA

The Bipartisan Legal Advisory Group (Speaker John Boehner, House Majority Leader Eric Cantor, House Majority Whip Kevin McCarthy, House Minority Leader Nancy Pelosi and House Minority Whip Steny Hoyer) voted 3-2 to approve Cantor's motion which would authorize the U.S. House to defend the Defense of Marriage Act in federal court.

Hat/tip to Joe.My.God

7 Questions For House Republicans About DOMA Defense

The Human Rights Campaign has released 7 questions they would like House Republican leaders to answer in advance of a decision by Speaker John Boehner to intervene in the legal defense of the Defense of Marriage Act (DOMA) now that President Obama and the U.S. Department of Justice has decided the 1996 federal law is unconstitutional.:

1.         There are as many as nine lawsuits in federal court challenging the constitutionality of Section 3 of DOMA.  Will House Republicans intervene in all of these lawsuits?

2.         Who will represent House Republicans in court? Will the House hire outside private counsel to defend the cases? If pro-bono legal counsel will be asked to represent the House, who will that be? Will a conflict and ethics check be conducted? Will the BLAG be consulted on strategic decisions related to the litigation?

3.         How much taxpayer money will this all cost?

4.         What will the House argue in defending DOMA?  Will they go back to Congress’s 1996 arguments for passing the law – that it is necessary because marriage equality is “a radical, untested and inherently flawed social experiment” and contrary to the “moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”?

5.         The Justice Department stopped defending DOMA because they concluded that laws that discriminate based on sexual orientation should receive a higher level of scrutiny by courts.  Will the House Republican leaders disagree?  If so, will they argue that gays and lesbians have not suffered a long history of discrimination?  That sexual orientation is somehow relevant to an individual’s ability to contribute to society, when they have four openly-gay colleagues?  That gays and lesbians can change their sexual orientation, a position at odds with every major psychological organization?  That gays and lesbians are politically powerful, ironically in defending a law passed by Congress specifically to disadvantage them?

6.         Do they think they’ll win, especially given that in two DOMA-related cases in Massachusetts, a federal judge appointed by President Nixon has already found Section 3 of DOMA to be unconstitutional even under the lowest level of scrutiny that gives great deference to the legislature?

7.         Apart from these cases, will Republican House leadership do anything to address the inequalities that lesbian, gay, bisexual and transgender people face?

It would be very interesting to see a response to almost any of these questions.

112th Congress More Anti-LGBT Than 111th

Joe.My.God reports that HRC is assessing the new Congress as significantly less disposed to passing LGBT-supportive legislation than the previous Congress.

I suppose these facts may challenge the views of people who were complaining about the Democrats in control of the previous Congress and making non-sensical claims that "there's no difference" between the parties.

Speaker John Boehner: "No, You can't!"

The 112th Congress convenes today, with John Boehner (R-OH) as Speaker of the House,  succeeding Nancy Pelosi (D-CA). In the Senate, Majority Leader Harry Reid leads a caucus of 53 Democrats and Independents.

John Boehner is now 2nd in succession for the U.S. Presidency, after the Vice-President.

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