Obama’s “Evolution” Accelerates: DOJ Formally Declares DOMA Unconstitutional

Well the Obama Administration slid some pretty big news into the holiday weekend trash dump, and for once it is very good news. In a late filing in the Northern District of California (NDCA) case of Golinski v. US Department of Personnel Management, the Department of Justice has formally stated that the Defense of Marriage Act (DOMA) is unconstitutional:

Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (“DOMA”), unconstitutionally discriminates. It treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court, discrimination based on sexual orientation is subject to heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation, but it has established and repeatedly confirmed a set of factors that guides the determination whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether members of the group “exhibit obvious, immutable, or distinguishing characteristics that define them as a group”, (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little in relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Careful consideration of those factors demonstrates that sexual orientation classifications should be subject to heightened scrutiny.

Here is the complete brief filed by the DOJ in Golinski

As much grief as Barack Obama has received for his “state of evolution” posture on granting full constitutional equality, in all respects, on LGBT issues, including more than a little from me, this is a very significant shift and should be applauded. The position staked out in Golinski is a follow on of the “new policy” announced by the Administration when it refused to continue defending the 2nd Circuit DOMA cases, but it is a quantum shift further.

The US government has gone from fighting to support DOMA, to refusing to support but standing on the margins, to entering the case and actively siding with the plaintiff seeking to declare the law unconstitutional. That is truly a wonderful evolution, and it is happening at warp speed now. this is far more reaching than just the pending DOMA cases in the 2nd Circuit. As I first said when the policy shift was announced by Eric Holder, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts, most importantly Perry v. Schwarzenegger (Prop 8) and the other DOMA cases currently being litigated.

This is simply fantastic news for all those who believe in Equal Protection and marriage equality for all. As I said exactly one week ago tonight when New York passed their marriage equality law in the dead of the night, the die is increasingly cast. The government’s official, and strong, step forward in Golinski is yet another big step toward the goal, and toward Anthony Kennedy’s wheelhouse. In conjunction with the Motion for Summary Judgment concurrently filed by Golinski herself, that should about seal the deal in the case. That is a beautiful thing.

Once the precedent is entered that “discrimination based on sexual orientation is subject to heightened scrutiny” the game is over across the board. The dawn is on the horizon.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
33 replies
  1. Peterr says:

    Good news indeed — and the very direct, unambiguous language of this brief deserves to be shouted from the rooftops!

  2. phred says:

    Gee, two torture-murder criminal investigations and now this… A person might think the WH is getting skittish about the weakness on their left flank heading into election season.

    Nonetheless, kudos to DOJ for finally getting around to doing the right thing. I look forward to the day when our LGBT compatriots enjoy their full equal rights as citizens.

  3. rosalind says:

    good on him. will hopefully make situations like this a thing of the past:

    Three Marine corporals have been charged with being part of sham marriages to get additional housing allowances available only to married couples, Marine Corps officials said Friday…

    Even after the military officially drops its ban against openly gay or lesbian members, same-sex couples, even if married, will still not be eligible because of a federal law defining marriage only as between a man and a woman, officials have said.

  4. Jake says:

    Information requested: Are not the two DOMA cases from Massachussetts, and therefore will be or are being heard by the 1st Circuit, not the 2nd?

    Thanks.

    • bmaz says:

      The two cases referenced as being behind the change in policy by the Administration are the Windsor case and the Pederson case, both in district courts within the 2nd Circuit. They are not to be confused with the earlier Gill case in front of Judge Tauro in Massachusetts.

      • Jake says:

        Thank you bmaz. I see I’m a bit behind the times, gotta catch up! Did not know there was action in the 2nd Cct as well.

        • bmaz says:

          Well, it is kind of interesting that Tauro’s Gill decision, which really started a flurry, did not end up being a focus as much as Pederson and Windsor. But there are a lot of factors that go into a case being the “just right case” or “it fortuitously got there case” that makes critical appellate precedent. This is one reason I have always found Perry to be so important, the way it was pled by the plaintiffs, and heard and decided by Vaughn Walker, makes it the best appellate vehicle I have ever seen for the legal precedent and change it is trying to make. You just do not get set ups like that often.

  5. timncguy says:

    Is this the same case where the Obama Admin was ordered by the courts to give insurance to the same-sex partner of a court employee and Obama instructed his administration to IGNORE the valid court order?

    Why didn’t Obama comply with the court order in the first place?

    • papau says:

      Yes it is –

      Obama screwed the GLBT community in this case – but the fear of ALL of the left leaving him has him now crawling back for a bit of GLBT support – even attended a dinner in NY! Don’t see how he screws us on Medicare/Medicaid/Social Security and then comes back into favor via a dinner somewhere.

      As to the case: Karen Golinski was denied spousal health benefits by her employer, the U.S. Ninth Circuit Court of Appeals in San Francisco. In January 2009, Chief Judge Alex Kozinski ruled that it violates the Ninth Circuit’s employment policies prohibiting discrimination based on sexual orientation to deny the legally married Golinski the same benefits for her wife, Amy Cunninghis as heterosexual court employees receive for their lawful spouses.

      Then OBAMA’s Federal Office of Personal Management (OPM)responded that the law governing federal employees’ health insurance and the so-called Defense of Marriage Act (DOMA) prevent coverage for the spouses of lesbian and gay federal employees, and instructed Golinski’s insurer not to enroll Cunninghis.

      Hard to understand how Obama can be both defendant and helper of the plaintiff – but that is for those with better legal minds than mine to work out.

      • BeachPopulist says:

        the fear of ALL of the left leaving him has him now crawling back for a bit of GLBT support – even attended a dinner in NY! Don’t see how he screws us on Medicare/Medicaid/Social Security and then comes back into favor via a dinner somewhere.

        Yep.

        • BeachPopulist says:

          Just to add: People tend to think of 2012 as a national election, but in the race for the WH I saw an article (think it was on HuffPo’s election “Speculatron”) that the contest boils down to I think something like five states: Nevada, Indiana, Ohio, Pennsylvania, and Florida. If the GOPer candidate can flip a majority of those states, it’s game over for Zero.

  6. trademarkdave says:

    Wow, President Wingnut McAsskisser’s poll numbers must really be tanking. I wonder what his campaign workers are hearing when they make those fundraising calls?

  7. Sharkbabe says:

    Good. Bout fucking goddamn time. And he’s still following not leading.

    Next could the embedded DOJ pot thugs please be leashed, or better, fired.

    • mzchief says:

      DING!

      Legal eagles speak up on the ethical manner (legal procedures, please) to sort the “wheat from the chaffe” in the depart of law enforcement officers so the ones that just shouldn’t be in the job don’t simply walk to another jurisdiction or “private security” operations near or afar.

  8. forest says:

    If we equate Obama with the DOJ and their half-assed desire for anything resembling justice, I still think it is premature to congratulate them on anything. This isn’t a done deal is it? When it is, the people who deserve the credit are the ones who pressured this Do-Little President and DOJ to get off their asses on something the majority of Americans right and left no longer discriminate against. Luckily for everyone the corporatocracy/ plutocracy had little exposure of their wealth on this one.

    Hasn’t Obama claimed he has no ideology? Hasn’t he shown that he will throw friend and ally to the wolves whenever it pleases his opportunistic nature? Remember who he has shown us to be his inner circle, colleagues, and instincts.

    This isn’t a big enough bone to cheer the DOJ until the job is done. Obama and DOJ will have plenty of chances to still fuck this one up, no?

    I have to say all this to remind myself that none of this would have happened without enormous pressure from everyone and the tipping point, could it have been New York with a BIPARTISAN approval of marriage and all that flak about how the NY governor got the job done contrasted against the lame-itude of this President on this particular injustice?

    This was a bipartisan consensus. Right and left no longer believe in continuing the injustice. Obama and DOJ were only responding to the pressure. As such, I won’t congratulate them. However, I would congratulate everyone who created the pressure.

    All we did was make Obama and DOJ cave on an issue that I really don’t think was all that important to them. Lip-service and slow response aren’t leadership. I guess the closest I can come is to congratulate that someone may be working for us in DOJ even if it isn’t Holder or his boss.

    In the meantime I guess we will let Obama claim all the credit, that’s what he is good at. Damn if we have to give it to him. I will never, sorry.

    • maa8722 says:

      I think the administration took a positive step.

      Yet I wonder if bmaz’s post might be a bit too sanguine at this point. It’s not entirely clear where this goes or how.

      Let’s be cautious and hope (1) it sticks, and (2) it doesn’t set a new procedural precedent that the GOP may gleefully tap when they’re in control of the DOJ. One would hope that day is delayed as long as possible, but it will happen at some point.

    • caleb36 says:

      To my mind, this turnaround (if it is one) is a cover for O’s accelerated connivance with the right wing agendas on the economy and environment.

  9. rosalind says:

    ot: oh, lookee there, the “atlas shrugged – the movie” filmmakers have decided to partake of some of that societal exploitation and engage the services of a more productive citizen than they for the next release:

    The filmmakers, who self-distributed and marketed “Atlas Shrugged: Part 1” as “the movie liberal Hollywood doesn’t want you to see” may partner with a studio distributor this time around, Kaslow said.

    “John appreciates the autonomy that came with spending his own money and doing his own theatrical release,” Kaslow said. “But he realizes that the motion picture business is especially challenging and there are a number of things studios do better than anybody else.”

    ahahahahahahahahahah.

  10. bigchin says:

    Too little too late.

    This gay man says OBAMA IS A FRAUD.

    He will NOT get my vote again and NOTHING he does before the election will make a difference.

    Too little too late.

    OBAMA IS A FRAUD.

  11. Ehrenstein47 says:

    Good.

    This is much more imprtant than Obama mouthign the words before the cameras.

  12. litvak36 says:

    For DOMA to be delared unconstitutional,the Supreme Court will not even have to get into the equal protection question. There is no “constitutional right” for gays to marry,its a matter for the legislatures and the Courts of the several states under their own state constitutions.

    DOMA will be tossed by the majoriy conservative Supreme Court on the issue of states rights,so dear to the heart of the right wing.The Federal government must treat the citizens of all states equally. Just as they couldn’t say people in certain states could pay less in income taxes than people in other states,they cannot say that the marriages of some states are entitled to less recognition than the marriages of other states. If New York,Massachusetts etc allow same sex marriages,the Federal government must recognize those marriages. I predict a 7-2 or 8-1 split against DOMA and it would not suprise me if it was Scalia who writes the opinion.

    • bmaz says:

      No, there is no “constitutional right for gays to marry”, there is, however, a constitutional right for gays to not be discriminated against. And that point is becoming increasingly inescapable for the courts, including sooner or later the Supreme Court, to recognize.

      • litvak36 says:

        The present Supreme Court will never find that on a Federal constituional basis,states must permit same sex marriage. This would require a change in personnel which could happen if Obama is re-elected and either Kennedy or Scalia dies or retires during his 2nd term and is replaced by a Justice who would be amenable to that argument.

        However,the state’s rights argument is so powerful that DOMA is hardly likely to be upheld.We must remember that when DOMA was passed,no state had actually permitted same sex marriage so the issue of discrimination between the citizens of different states was not a practical issue.

        • bmaz says:

          I cannot honestly say I even understand the confusing “states’ rights” argument you are making. But, above and beyond that, I think you are flat out wrong about the current court’s ability to reach the Constitutional equal protection argument, and I have little doubt that, by the time it gets there, Kennedy will vote for it. Heck, I think he would now if pressed.

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