Gaytterdämmerung Day 2: DOMA Almost Dust

Looks like Day 2 of Gaytterdämmerung went better than Day 1 for the supporters of LGBT equality. Apparently things are not looking good for the so-called Defense of Marriage Act, because even Justice Kennedy was skeptical that the government has a rational basis for enacting and enforcing the law.

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013

Lyle Denniston of the Peabody award-winning website SCOTUSblog says:

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction.  But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.

It would still be a great win to strike down the odious DOMA and allow legally married couples to have access to federal marriage benefits and responsibilities, but if we don't get clarity from a majority of justices on the "level of scrutiny" question than the underlying issues of equal citizenship for LGBT people in this country will not have been resolved. (Heck, even if the Court were to say that sexual orientation is a suspect class, that would still have to be operationalized on a practical level and would take years topositively impact the everyday lives of LGBT Americans.


Hat/tip to Joe.My.God

Queer Quote: GOP Brief Claims Gays Are Powerful

In their opening 60-page brief to the United States Supreme Court defending the odious Defense of Marriage Act (DOMA) in the U.S. v. Windsor case, the Republican U.S. House majority claims, in a brief written under the name of conservative superlawyer Paul Clement (who has billed federal taxpayers nearly $3 million to date for his services), that gays and lesbians do not deserve the "equal protection of the laws" found in the 5th and 14th Amendments to the United States Constitution because they are too "powerful."

And that, dear reader, leads to today's Queer Quote:

In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.  Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some “ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at 445. 

Gays and lesbians not only have the attention of lawmakers, they are winning many legislative battles.  And the importance of this factor in the analysis cannot be gainsaid.  This Court has never definitively determined which of the four factors is necessary or sufficient, but given that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.

LGBT Think Progress demolishes this argument pretty convincingly by placing its content in context with the Civil Rights struggles of the 1960s:

One can only wonder what Paul Clement might have written if Virginia had hired him to defend their practice of racial marriage discrimination when it was before the justices in 1967. “Negro leaders meet often with the President and with Congressional leaders, and indeed, President Johnson himself signed two major laws pushed by the Negro lobby. Negro groups not only led a widely attended rally on the National Mall, but they routinely organize well-attended sit-ins, marches and other events that garner press attention and national sympathy. Recently, a Negro march at the Edmund Pettus Bridge in Alabama even sparked the President of the United States to give a speech endorsing the Negro lobby’s agenda before a joint session of Congress.

So if a minority group is actually able to organize and win battles in legislatures and at the ballot box Clement (on behalf of the House Republicans, using our tax money) is arguing that the Courts do not need to intervene to strike down an act by the federal legislature which explicitly discriminates against that same group. "Orwellian" or "Catch-22" only begins to describe the logic at play here.

And it is completely historically inaccurate. Congress passed landmark legislation to protect racial minorities in 1964 and 1965 prior to the United States Supreme Court ruling in Loving v Virginia in 1967 that 16 states' ban on interracial marriage violated the United States constitution.

I am waiting with bated breath to see what our side, represented by Mary Bonauto of Gay and Lesbian Advocates and Defenders (GLAD) will say in the reply brief about this and other specious arguments invented to try and defend the indefensible discrimination inherent in DOMA. The good guys have won before the last 10 federal courts to consider DOMA and there's good reason to suspect that the Supremes will rule similarly.

SCOTUS Sets 11/20 For Prop. 8 Certioari Decision

On November 20th, the 9 Justices of the United States Supreme Court will meet in their chambers  to decide the fate of Proposition 8, the November 2008 ballot measure which attempted to amend the California constitution to remove the previously granted right to marry to same-sex couples. The technical term is whether they will grant certioari to the heterosexual supremacists who have appealed their repeated losses in federal courts to the highest court in the land. If there are not four Justices who want to hear the case, then the lower ruling will stand and soon afterwards marriage equality will be restored to the state of California. If there are at least four Justices who want to hear the case, then certioari will be granted and eventually a briefing schedule will be determined and oral arguments will occur. Then a final decision on the constitutionality of Proposition 8 will be issued by June 2013.

The Justice's certioari decision in the case, now called Hollingsworth v. Perry, is not expected to be announced until Monday November 26th. Many observers think there is a reasonable chance that the Court will decide not to hear the case, since the lower court ruling in the 9th Circuit is relatively narrow, and there are several other LGBT-related cases pending before the Court as will this term.

In addition to a certioari decision on Proposition 8, the Justices will also decide on which of the many DOMA-related cases it will hear. The Justices are widely expected to grant at least one of these appeals, especially since the Justice Department is also asking them to. We'll know the answer on November 26!

House GOP Has Wasted $1.5M Defending DOMA

Ever since the President and the Department of Justice made their decision public that the so-called Defense of Marriage Act (DOMA) is unconstitutional in February 2011, the House Republicans, led by Speaker John Boehner have been paying superlawyer Paul Clement to defend the federal statute in federal court. The Bipartisan Legal Advisory Group of the U.S. House (BLAG) authorized $1.5 million to defend DOMA and today comes word they have basically spent $1,447,996.73 of that amount.

BLAG has not gotten much for spending  nearly $1.5 million of taxpayer funds to defend discrimination, because DOMA has been declared unconstitutional by 5 courts in at least 3 federal circuits (the 9th, 1st and 2nd) with the most prominent loss at the 1st U.S. Circuit Court of Appeals, Gill v. Office of Personnel Management (along with the companion case Massachusetts v DHHS) widely expected to be taken up by the United States Supreme Court in its current term.

The Democrats in the U.S. House, led by former Speaker Nancy Pelosi have vociferously opposed the legal actions by BLAG as well as the wasteful spending of federal taxpayers to defend a statute which has been declared unconstitutional by multiple federal judges, is opposed in court by the Attorney General of the United States and whose repeal has been endorsed by the President of the United States.

Hat/tip to Washington Blade.

Edith Windsor DOMA Challenge Heard in 2nd Circuit

Edith Windsor, 81, is the lead plaintiff in a federal lawsuit in which oral arguments were heard before a 3-judge panel of 2nd U.S. Circuit Court of Appeals this week challenging the constitutionality of the so-called Defense of marriage Act (DOMA). Windsor was married to Thea Spyer in Canada and the two resided in New York state, which recognized same-sex marriages that were legally performed in other jurisdictions even before the state enacted legislation legalizing the performance and solemnization of same-sex marriages in the state in July 2011.

The case of Windsor v. United States is one of several federal lawsuits which have been successful at the District Court level and are rapidly descending on the United States Supreme Court. On Wednesday of this week Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives defended the stature while Roberta Kaplan, representing the American Civil Liberties Union and Windsor argued that the statute is unconstitutional before 3 judges (1 appointed by President G.H.W. Bush, 1 appointed by President Bill Clinton and 1 appointed by President Barack Obama). Openly gay Acting U.S. Assistant Attorney General Stuart Delery argued for the government that the position of the United States is that DOMA fails constitutional muster under a heightened level of judicial scrutiny.

Chris Johnson of the Washington Blade did a masterful job summarizing the arguments presented before the judges:

Questions from judges hit on several topics, although the questioning from didn’t reveal much in terms of what how they’d rule in the case. Many inquiries were posed about the extent to which gays and lesbians enjoy political power within the U.S. government. Opponents of DOMA have argued the anti-gay law is unconstitutional because gays and lesbians lack political power, but BLAG contends the LGBT community has significant influence.

Asked by Jacobs about whether the test of political power is whether gays and lesbians have any power at all or whether power is diminished, Clement replied, “I think it’s the former, and I don’t think it’s not a overwhelmingly difficult test. … It’s a matter of whether you get the attention of lawmakers.”

Clement pointed to a friend-of-the-court brief signed by 145 House Democrats filed in the case on behalf of plaintiffs as evidence that the LGBT community has influence over the political process as he asserted the LGBT community should look to the legislative process to repeal DOMA, saying “This is an issue that could be left to the Democratic process.”

But Kaplan said the 30 marriage amendments that passed in state throughout the country are evidence that gay and lesbians are politically powerless, even though she emphasized these amendments have no bearing on the case at hand against DOMA.

The degree of scrutiny under which laws related to sexual orientation should face before the courts also came up the during the hearing. Judges asked whether they should overturn DOMA on the basis that such laws should be subjected to strict scrutiny, or more intermediate level of heightened scrutiny or be examined under a rational basis review. The level of scrutiny they apply could have implications on court cases related to sexual orientation.

In the event the court decided to rule against DOMA, Clement said the court asked the court not to apply heightened scrutiny, noting it would be the first appellate court to do so because the First Circuit Court of Appeals when struck down DOMA in May under rational basis review.

Kaplan said she was arguing for the higher level of review called strict scrutiny as opposed to the more intermediate heightened scrutiny because “being gay or lesbian is closer to being African-American than being a woman.” Laws related to gender have been subjected to heightened scrutiny, but laws related to race have been subjected to strict scrutiny.

But Delery didn’t articulate the same view, saying he was arguing against DOMA on the basis that it violated heightened scrutiny. While he acknowledged arguments could be made that DOMA fails rational basis, he wouldn’t commit to saying that should be struck down under that standard.

Clement basically relied on two rather old cases to defend his position, starting with 1972's Baker v Nelson, a case in which two men filed to strike down Minnesota's statutory ban on same-sex marriages a full 30 years before any court ruled definitely in favor of marriage equality. He also brought up an even more ancient (and controversial case), 1885's Murphy v Ramsey which involved the regulation of polygamy in the then Utah Territory and that relies upon one of the most reviled cases in Supreme Court jurisprudence, Dred Scott, as a source of its legal authority. Dred Scott is the 1857 case where slaves were declared to not be citizens of the United States and was one of the flames which fueled the conflagration that became the Civil War.

It will be interesting to see how long the Second Circuit takes to release their decision and whether they will be influenced by (or will influence) the decision by the United States Supreme Court to take other pending DOMA-related cases pending on appeal before the other United States Courts of Appeals.

USSC LGBT Decisions Not Happening Today

The United States Supreme Court has not decided whether to grant certiorari in any of the numerous LGBT-related cases pending before the High Court today. The next time we could hear whether the court will decide whether it will decide the merits of these cases is next Monday at 9:30am.

The most important of the pending cases involves the appeal from heterosexual supremacists to resuscitate Proposition 8, a purported amendment to California's state constitution to ban any future same-sex marriages which has been rejected by every federal court that has considered it so far. The case is now called Hollingsworth v Perry, although when it was Perry v Brown both the federal district court and federal appellate court ruled in favor of the plaintiffs.

The next set of cases are the myriad DOMA cases from the 1st, 2nd and 9th circuits where  the forces for equality have won at the lower level and Paul Clement, representing the Republican majority in the U.S. House of Representatives, is attempting to defend the discriminatory status quo of enforcing heterosexual privilege by the federal government.

Stay tuned for more information next week!

Bush-Appointed Federal Judge Strikes Down DOMA

This is getting almost comical. On Tuesday, yet another federal judge ruled the so-called Defense of Marriage Act (DOMA) unconstitutional. This time it was in the case of a federal lawsuit filed by Gay and Lesbian Advocates and Defenders (GLAD) representing a number of same-sex couples married in Connecticut who are suing the federal government for denying them access to federal benefits provided to other married couples under the discriminatory provision of Section 3 of DOMA.

The name of the case is Pedersen v Office of Personnel Management and the name of the federal judge is Vanessa L. Bryant, an appointee to the district court for Connecticut by President George W. Bush in 2007.

Ruthann Robinson, a well-regarded constitutional law professor, provides this analysis of Bryant's voluminous (over 100 pages) and thoughtfully reasoned opinion:

Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation.  Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny."  She then quickly defaulted to another rationale:  "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny." 

Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute.  The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources."  In litigation, BLAG asserted five: 1)  To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2)  To protect the public fisc; 3)  To maintain consistency and uniformity with regard to eligibility for federal benefits;  4)  To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5)  To recognize an institution designed to ensure that children have parents of both sexes.  One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.

Chris Geidner has the full text of today's ruling. It will be up to the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives, represented by superlawyer Paul Clement to decide when or whether they want to appeal the ruling to the 2nd U.S. Circuit Court of Appeals, or perhaps bypass the federal appellate level and appeal to the Supreme Court. There are already 9th U.S. Appellate Circuit and 1st U.S. Appellate Circuit DOMA cases pending before the nation's highest court, plus several other cases at the district court level.

At this point it is only a matter of when, not whether, DOMA will cease to be legally enforceable.

Republicans Appeal DOMA Ruling To SCOTUS

As expected, the Republicans who control the U.S. House of Representatives have appealed to the United States Supreme Court to overturn the recent unanimous ruling from the 1st Circuit Court of Appeals in Gill v. Office of Personnel Management striking down the Defense of Marriage Act as unconstitutional. The organization paying for the appeal is the Bipartisan Legal Advisory Group (BLAG), which consists of the 5 highest ranked members of Congress. Curious they made their decision to file for certiorari late on the last Friday in June, eh?

Anyway, as usual Chris Geidner has the deets:

In a filing obtained by Metro Weekly, BLAG asks the Supreme Court, which must agree to consider the case, to take the appeal for three reasons: (1) the constitutionality of DOMA Section 3 is "an issue of great national importance" and raises separation-of-powers questions; (2) the First Circuit decision conflicts with the Supreme Court's 1972 decision in Baker v. Nelson and other appellate decisions; and (3) the First Circuit "invented a new standard of equal protection review."  

In the course of the filing, called a petition for a writ of certiorari, BLAG states that "[t]he executive branch has ... abdicated its traditional role of defending the constitutionality of duly-enacted statutes."

It should be fascinating to see whether the Supreme Court will decide to accept case (which is expected) and how they will deal with the 40-year-old case of Baker v. Nelson which was decided when no state had legalized marriage equality and no court had ever found a constitutional right to marry included same-sex couples or even that LGBT people had any kind of constitutional protections at all.

Soon the heterosexual supremacists defending Proposition 8 will also have to decide whether they will appeal their federal appellate court loss to the United States Supreme Court. If SCOTUS accepts both, then there will be two blockbuster gay rights cases (both dealing with marriage equality in two very different contexts) in the 2012-13 term.

Appellate Court Voids Core of DOMA Unanimously!!

Excellent news out of Boston today! The 1st U.S. Circuit Court of Appeals has upheld the July 8, 2010 trial court decision in Gill v. Office of Personnel Management and Massachusetts v U.S. Department of Health and Human Services in unanimously ruling that the so-called "Defense of Marriage Act" violates the United States constitution. This is the first (but probably not the last!) appellate court to strike down Section 3 of DOMA, the part which purports to establish a federal definition of marriage for the purpose of disbursal of federal benefits, regardless of a state's definition of marriage.

Gay and Lesbian Advocates & Defenders (GLAD) who in 2003 had previously won the Goodridge case leading to marriage equality in the state of Massachusetts, sued the federal government, along with Massachusetts' Attorney General Martha Coakley that married U.S. citizens were  being denied federal benefits thanks to DOMA.

Here's a key excerpt from the decision:

We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA.  Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly
on point.  If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test. 

[..] 

The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton.  Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. 

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute.  This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges
Learned Hand and Henry Friendly.  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern. 

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.  Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

The ruling's effect was stayed until the United States Supreme Court could grant certiorari (take up the case). Only the U.S. Supreme Court can strike down a federal law and have it's impact apply to the entire nation, the 1st Circuit's ruling, if it is not appealed, would apply to Massachusetts, Rhode Island, New Hampshire, Maine and Puerto Rico (MA and NH already have marriage equality and ME is voting on the question late this year ).

Immigration Equality Files Federal DOMA Lawsuit

The national LGBT advocacy organization Immigration Equality filed suit in federal court on Monday on behalf of five same-sex binational couples to have the so-called Defense of Marriage Act struck down. (Disclosure: I have served on the board of directors of Immigration Equality since 2008.)

The lawsuit, called Blesch v. Holder, argues that the denial of permanent resident status (commonly known as "green cards") to five same-sex binational couples due to Section 3 of DOMA violates the constitutional rights of the U.S. citizens and the non-citizens of the named plaintiff couples. The suit was filed in the Eastern District of New York on behalf of Immigration Equality and the couples by the high-powered law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

According to the press release:

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples,” the lawsuit states, “these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.” Were the Plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”
The five couples named in today’s suit are:

• Edwin Blesch and his South African spouse, Tim Smulian
. Edwin and Tim, who have been together for more than 13 years, were married in South Africa in August 2007.  While their marriage is honored by Edwin’s home state of New York, their green card petition was denied on March 14, 2012. They reside in Orient, New York.

• Frances Herbert and her spouse, Takako Ueda, who is originally from Japan
.  Frances and Takako, who have known each other for 22 years, were married in April 2011. Their petition for a green card was denied on December 1, 2011.  They reside in Dummerston, Vermont.

• Heather Morgan and her spouse, Maria del Mar Verdugo, a native of Spain
.  Heather and Mar have known each other for 14 years.  They were married, in New York, in August 2011 and have a pending green card petition, which is expected to be denied. They reside in New York City.

• Santiago Ortiz and his spouse, Pablo Garcia, a native of Venezuela
. Santiago, a Puerto Rican American, met Pablo in 1991 and registered as domestic partners in 1993. In May 2011, they were married in Connecticut. The couple have filed a green card petition, which is expected to be denied.  They reside in Elmhurst, New York

• Kelli Ryan and her spouse, Lucy Truman, a native of the United Kingdom
.  Kelli and Lucy have been a couple for more than 11 years and entered into a civil union in July 2006.  They were married in March 2010 in Connecticut. Their petition for a green card was denied on March 27, 2012. They reside in Sandy Hook, Connecticut.

The plaintiffs in the suit include a retired professor of English at a New York college (Blesch); a home elder-care provider (Herbert); a marketing director for a global non-profit organization (Morgan); a retired school psychologist (Ortiz); and two doctors of immunology (Ryan and Truman).
“The families in today’s lawsuit meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay,” said Rachel B. Tiven, Esq., executive director of Immigration Equality.  “Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.”
Immigration Equality is widely recognized as the country’s premiere national organization providing legal counsel to LGBT immigrant families.  In 2011, the organization fielded 1,431 legal inquiries from binational couples like those in the suit filed today, a 141% increase over the previous year.  A recent analysis from the Williams Institute at the University of California-Los Angeles estimated 36,000 couples - and the nearly 25,000 children being raised by them - are impacted by the United States’ refusal to recognize lesbian and gay relationships for immigration purposes.

This is very exciting news! And quite timely, as it turns out. Tomorrow there will be oral arguments in the 1st Circuit Court of Appeals in Gill v. Office of Personnel Managment, the appeal of a motion for summary judgment in the plaintiff's favor due to their July 2010 win at the District Court level which ruled that Section 3 of DOMA was unconstitutional.

There are now active lawsuits in the 1st, 2nd and 9th federal circuits, challenging the constitutionality of DOMA. The only case which has reached the appellate court level is GLAD's Gill v OPM case (which is paired with Massachusetts's case). Only one federal judge has ruled that it is constitutional, while a handful of ruled it is not. The House Republican majority has hired super-lawyer Paul Clement (fresh off his Supreme Court appearance arguing that Obamacase is unconstitutional last week) to defend DOMA in all these jurisdictions. Our side has the indomitable Mary Bonauto of Gay and Lesbian dvicates and Defenders who won the Massachusetts and Connecticut marriage cases at the state level and the win in Gill at the federal level.

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.

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.

Clement Quits Law Firm After It Exits DOMA Defense

It's been a big news morning today. First, responding to online pressure from Human Rights Campaign and Change.org, Paul Clement's law firm of King & Spalding announced that they had filed a motion to remove the firm from representing the Bipartisan Legal Advisory Group of the U.S. House of Representative in its defense of the Defense of Marriage Act (DOMA) in federal court.

The firm's statement:

Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

In response to his firm's decision to refuse to sign on to a legal defense which per force requires them to argue that discrimination against same-sex couples is constitutional, Paul Clement (who was reportedly paid $5 million a year by King & Spalding) resigned from the firm and joined another:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do," Clement wrote to King & Spalding chairman Robert Hays. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it." 

Clement said he will join Bancroft PLLC, a small Washington-based firm that is home to former Bush Justice Department official Viet Dinh.

The full text of Clement's resignation letter is also available. This is probably good news for the likelihood of DOMA not surviving judicial review since Clement will be forced to defend the discriminatory law without drawing upon the resources of a huge law firm like King & Spalding.

It should be noted that the pressure to get Clement's former law firm does not violate the principle that all defendants have a right to legal representation, like the Los Angeles Times editorial board foolishly claimed. DOMA is not a person, it does not have any Miranda rights; this is not a criminal case, it is a civil case. The contract that BLAG had signed with King & Spalding prohibited all members of the firm from expressing opposition to DOMA or advocating for the repeal of the law.