On September 18, the Department of Justice (DOJ) filed a motion to dismiss the lawsuit asking the courts to throw the case out arguing that DOMA must stand using "rational basis review," or the lowest level of judiciary scrutiny on the case.
America Blog reported, "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.'"
I wrote at the time:
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.Today, GLAD has responded to the DOJ by filing for a summary judgment itself. This is the same tactic used by the defendants of Prop 8 to avoid going to trial. However, on this case, this works for us.
GLAD wants the judge to issue a ruling in its favor based on law without trial. However, unlike the defendants of Prop 8 and the DOJ who do not want heightened scrutiny, GLAD does because it reveals more of the discriminatory motivations behind DOMA, thus proving there is no rational basis for it and the government should not uphold it.
No federal court has reviewed sexual orientation with heightened scrutiny. If the court agrees and reviews before the Prop 8 trial in January, it will be the first to do so.
Following is GLAD's press release (PDF):
America Blog was available for a press conference call with GLAD that I was unable to make. They report, "Several reporters asked whether this case could ultimately end up in the Supreme Court. If it does, according to the GLAD lawyers, the ruling would impact only those states that allow same-sex marriage and would determine whether the federal government would have to respect those marriages. If the judge does find DOMA unconstitutional, it's expected that the Obama administration would appeal that ruling."GLAD Forcefully Responds to U.S. Motion to Dismiss DOMA Lawsuit; Seeks Final Ruling in Favor of Plaintiff Couples
Stepping up its litigation challenging Section 3 of the Defense of Marriage Act, Gay & Lesbian Advocates & Defenders (GLAD) today filed in the U.S. District Court for the District of Massachusetts both an opposition to the federal government's motion to dismiss Gill v. Office of Personnel Management, and a motion for summary judgment seeking a final ruling on the law in favor of the plaintiffs.
"Both sides agree that our plaintiffs have taken on the commitments of marriage, played by the rules, paid into the system, and been denied benefits because of DOMA," says GLAD Legal Director Gary Buseck.
"Now we're asking the court to say once and for all that the federal government must end its blatant double standard of providing rights and protections to all married couples except gay and lesbian married couples."
"While the government has rightly abandoned the reasons Congress relied on in passing DOMA in 1996, it now seeks to dismiss our case by arguing that DOMA "maintains the status quo," says Mary L. Bonauto, GLAD Civil Rights Project Director.
"The reality is that DOMA itself radically changed the status quo by which the federal government recognized and accepted state determinations of who is married. There is no valid excuse for the federal discrimination imposed by DOMA and this can be resolved now and without a trial."
GLAD argues that under Equal Protection guarantees, there is no justification for splitting married people into two classes: those who are "married" under federal law and those whose marriages do not exist for any federal purposes. "We believe that DOMA should receive 'heightened scrutiny' from the District Court for many reasons, including because it deliberately targets gay men and lesbians," said Bonauto.
More specifically, GLAD argues that
- DOMA represents an unprecedented intrusion of the federal government into the states’ traditional roles in determining the marital status of its citizens.
- By prohibiting married same-sex couples from accessing the safety net, the federal government provides for all other married couples, DOMA Section 3 unfairly burdens their ability to protect and care for their families.
- By targeting gay men and lesbians, DOMA discriminates explicitly on the basis of sexual orientation. GLAD argues that any discrimination based upon a person’s sexual orientation should be viewed with suspicion by the court.
The following are PDF downloads:
- Memorandum of Law in Support of Motion to Dismiss and Motion for Summary Judgment
- Statement of Non-Adjudicative Facts
- Statement of Undisputed Facts