Tuesday, July 5, 2011

DOJ's Balls Quietly Got A Little Bigger This Weekend

Amid the celebration that our nation's third-most populous state now has gay marriage, advocates and activists are quick to caution that this does not apply at the federal level. Just because New York has marriage equality does not mean the United States government recognizes that relationship in any way.

However, something curious has happened in a key court case in the fight to secure health benefits for the partners of federal employees. Karen Golinksi is one such federal employee who is suing the government in order to obtain benefits for her wife, and instead of facing an uphill battle with the Department of Justice, a brief was filed this weekend not just supporting her claim but stating that the court should find DOMA unconstitutional.

This qualifies as holy shizballs amazing, folks.

"Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder's decision that Section 3 of DOMA -- the federal definition of marriage -- is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. Previously, the government had attached the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.

"But, for Golinski's case, DOJ did so. In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ's lawyers -- in describing how 'gays and lesbians have been subject to a history of discrimination -- write, 'The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.'"

As the incomparable Daniel Villarreal from Queerty points out, this is indeed a very big deal.

"Basically instead of just saying that section 3 of DOMA is unconstitutional, Obama’s administration said its part of a larger system of nationwide institutional abuses against gay Americans throughout history and THUS the court should find DOMA unconstitutional as well. It sounds curiously like the historical testimony Olson and Boies offered in the Prop 8 trial.

"Basically, it’s a huge boon for the gay community that really shakes up the remaining DOMA lawsuits with an implicit government admission that it has had a direct role in unconstitutional anti-gay discrimination, a history that must stop today—amazing!"

I'm not a legal expert, but it seems very unusual to me for the DOJ to ask a court to rule a previously defended policy unconstitutional. It's kinda ballsy, and it's kinda smart, and it's kinda under the radar, meaning that Obama and Co. are going to get away with it. Neat!

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