Sunday, July 3, 2011

DOJ: DOMA is Unconstitutional

In Golinski v. Office of Personnel Management, federal employee Karen Golinski is suing the federal government's Office of Personnel Management. She demands that they extend the same health insurance coverage to her partner that would be afforded to a heterosexual marriage. Golinski and her partner are married under California law, but § 3 of the Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages, including in the provision of employee benefits.

The Department of Justice announced last month that it would no longer defend the constitutionality of the Defense of Marriage Act, prompting Congressional Republicans to hire their own counsel to defend the indefensible. The Republicans' lawyer, Mr. Clement filed the first brief in which he has attempted to defend the constitutionality of DOMA on the merits in a motion to dismiss Golinski's suit. Yesterday, the DOJ filed a full rebuttal in an expansive 31 page brief that argues that the law is unconstitutional. This is the first time that the Department of Justice has expanded upon the letter that Attorney General Holder sent to House Speaker Boehner explaining that the law would not be defended in court.

The brief argues that that classifications based on sexual orientation must meet a middle standard. Classes o The 'heightened scrutiny' that DOJ argues for would put sexual orientation on the same level as gender under the regime of rights-protections in the courts. Laws can discriminate between genders, but only if the objective of the law is to fulfill an important government imperative and the means through which the law meets that objective is 'substantially related' to the goal. This is a much more stringent standard than the one that Congressional Republicans are arguing that the court should use in analysis. The lowest standard of review, the rational basis test, requires only that a law be a reasonable object of government attention and that the means employed could be rationally construed at achieving those means. The actual standard of review may not matter in some cases; the Prop 8 debacle demonstrates that discrimination in marriage law against same-sex couples also fails a rational basis test.

That the DOJ is asking for a higher standard of review for laws that use a sexual orientation classification in general is the bigger news of the day. Using a heightened standard of review would certainly have made Don't Ask Don't Tell impossible as an administrative policy in the army. The army currently can discriminate against women--keeping them out of combat roles--but certainly cannot prohibit service outright based on gender. If heightened scrutiny is used as the standard for sexual orientation, sexual minorities will receie the same general process protections as women.

The courts can reject this standard or they can use it; the likelihood of appeal to the 9th circuit regardless of outcome in the district court is high. If the circuit adopts the heightened scrutiny standard, a lot of state law will have to meet a humane and reasonable standard. I think the likelihood of adopting that standard in the 9th circuit is fairly good. If someone wants to discriminate against gay and lesbian Americans in the Western United States, they'll have to seek some carefully tailored means and be in pursuit of some important goals.

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