Friday, September 18, 2009

Obama Administration Defends DOMA Again by Filing to Dismiss Powerful Federal Case Against It

UPDATE: Pam's House Blend reports on an email from GLAD: "So, at this point we have 14 days to file an opposition to the motion dismiss. The government will then file a reply to our opposition. After that, our first hearing will be scheduled, and we can expect that to take place early next year. Having said all of that, it's possible that both sides will get and receive extensions on that schedule."

Obama's Administration defended the Defense of Marriage Act again by filing a brief today seeking a dismissal of one of the strongest federal cases against the discriminatory law, Gil vs. the Office of Personnel Management.

Joe Sudbay of America Blog reports:
...the Department of Justice is defending DOMA with an array of legal arguments. Importantly, the DOJ thinks DOMA should be subject to the "rational basis review,' which is the lowest level of judicial scrutiny. All the government must do is prove a "rational basis" for the legislation meaning "a legislative policy must be upheld so long as there is any reason- ably conceivable set of facts that could provide a rational basis for it, including ones that Congress itself did not advance or consider. DOMA satisfies this standard."
The brief does reiterate Obama's opposition to DOMA.
As the President has stated previously, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.1 The law of this Circuit requires that this Court find that DOMA is constitutionally permissible because Congress could reasonably have concluded that DOMA is rationally related to legitimate governmental interests.
2009 09 18 DOMA DOJ Motion to Dismiss

Gay & Lesbian Advocates & Defenders (GLAD), who filed the case, issued the following press release:
The Department of Justice has filed a motion to dismiss today in Gill v. Office of Personnel Development, GLAD's lawsuit challenging Section 3 of the Defense of Marriage Act.

Mary L. Bonauto, GLAD's Civil Rights Project Director and co-lead counsel in Gill, said "Nothing in the government's brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states' determination that people are married. Obviously we disagree with any argument that DOMA is constitutional. Married same-sex couples are being treated differently from other married couples. To us, that's a clear-cut violation of the promise of equal protection."

Gary Buseck, GLAD's Legal Director said, "We're seeking justice for the widows and widowers who are denied death benefits, for people who can't get on their spouse's health plan, for parents who can't file taxes jointly and pay thousands extra each year that they could put away for their children's education or family emergencies."

"There is nothing in the brief that we are unprepared to deal with," added Bonauto. "We're pleased that the issues have now been joined and the case is moving toward resolution, because every day, an increasing number of families - not just our plaintiffs - are being harmed by DOMA. We're confident in the justice of our cause and the strength of our case."

GLAD filed its challenge to DOMA Section 3 in U.S. District Court on March 3, 2009, and filed an amended complaint in July on behalf of 8 Massachusetts married couples and 3 widowers who have been harmed by the law. In July, GLAD scored its first victory in the case when the State Department changed its passport name change policy and plaintiff Keith Toney was for the first time able to get a passport in his correct, married name.

Gill has been described as "a carefully planned case quietly underway in Massachusetts federal court [that] could be the gay marriage test with the greatest national impact" by the National Law Journal. More information on the case is available at The DOJ brief can be read at .

Gay & Lesbian Advocates & Defenders is New England's leading legal organization devoted to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.
I find it striking that the Department of Justice (DOJ) used the rational basis argument given that recently, the proponents of Proposition 8 just filed a motion for summary judgment to avoid going to trial on the federal case against the initiative. One of their arguments rest on the rational basis argument (which relies heavily on past rulings and tradition), stating that gays and lesbians are not warranted heightened scrutiny (which requires evaluation of found facts and witness testimony to determine if a law harms or helps state interest) - a stark disagreement with the California Supreme Court ruling in the marriage cases which classified gays and lesbians as suspect, putting us in the same category as race and gender among others.

This article
, by a supporter of marriage equality, examines an Constitutional argument, not a policy argument, of rational basis and how that approach is beneficial to "traditional" marriage. It's an interesting look at the difference between rational basis arguments and heightened scrutiny approaches.

And don't worry. I'm not a legal scholar, and I'm able to follow all these legal arguments and documents. It's just important that we understand how our rights are being analyzed and argued in court. The rational basis vs. scrutiny conflict is key to how our rights are won.

1 comment:

  1. Thanks, I think. Lots of water still to flow under the bridges.

    PS. If you disagree with this filing, I do hope you can/are reconsidering Marching on OCT 11.