Part of making our progressive goals a reality is thanking and supporting our representatives when they do the right thing on an issue. Last Friday, the Obama Administration’s Department of Justice did the right thing by filing a brief in federal court arguing that the indefensible Defense of Marriage Act (“DOMA”) is unconstitutional because it discriminates against LGBT Americans. Thank the Obama Administration for taking this stand by contacting the White House and by making sure your progressive friends and acquaintances are aware of the steps that the Obama Administration is taking to end DOMA.
The core of DOMA is Section 3, which defines “marriage” for purposes of federal law as being only between a man and a woman, and “spouse” as being only a person of the opposite gender who is a husband or wife. The result of this provision is that same-sex couples are not able to receive any federal benefits that accrue to married couples or spouses, even if a same-sex marriage is legally valid under state law. There are approximately 1,138 provisions in federal law in which benefits, rights, or privileges are dependent on marital status and, therefore, denied to same-sex couples by DOMA. These include health insurance and other benefits for the spouses of federal employees, numerous tax provisions that benefit married couples, and special considerations given to spouses in immigration, asylum, and deportation proceedings. In short, DOMA denies LGBT Americans equal rights under the law.
Because of its discriminatory impact, there are numerous lawsuits pending in federal courts that challenge the constitutionality of DOMA. In 2009 and 2010, the Obama Administration DOJ defended DOMA in federal court, as it is customary for DOJ to defend federal laws unless and until Congress changes them. In February 2011, however, the Obama Administration and Attorney General Eric Holder announced that they would no longer defend DOMA in court because they concluded that the Act is unconstitutional.
Last Friday, the Obama Administration DOJ went a major step further and filed a brief in the case of Golinski v. United States Office of Personnel Management urging the court to find Section 3 of DOMA unconstitutional because that law was “motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships.” In that case, Karen Golinski, a federal employee, is seeking to have her spouse covered under the federal employee health insurance plan, just as opposite sex spouses are covered. Click here to read the DOJ brief, which includes a detailed discussion of the discrimination that LGBT have and continue to experience at the hands of federal, state, and local governments and private actors.
The DOJ filing is an important step, as it is the first time that the federal government has urged that a court apply heightened scrutiny to a law that discriminates against LGBT Americans (just as heightened scrutiny applies to laws that discriminate based on race or gender). The litigation over DOMA is also a good example of how elections matter. When the Obama Administration announced that it would stop defending DOMA in court, the House Republicans, acting through the Bipartisan Legal Advisory Group (which has a 3-2 Republican majority), hired their own lawyers to defend DOMA in court. This effort is being paid for by taxpayers, at the rate of $520 per hour and up to $500,000 total. The Obama Administration DOJ brief discussed above was filed in response to the House Republicans’ motion asking the court to dismiss Golinski’s lawsuit on the grounds that DOMA is constitutional. The House Republicans’ brief is available here, and it is striking how different it is from the brief that the Obama Administration filed.
When the Obama Administration’s DOJ defended DOMA in 2009, progressive bloggers such as AmericaBlog were harshly critical. That criticism was certainly understandable, though considerably overwrought at times. Now that the Obama Administration DOJ has stood up on this issue and urged a federal court to find DOMA unconstitutional, we certainly hope that progressives will thank and support the Obama Administration for doing the right thing. You can help out by contacting the White House, writing a letter to your local newspaper editor, and talking with your friends and colleagues about why you support the Obama Administration standing up for equality for LGBT Americans.