Gays see ‘watershed moment’: Gov’t court brief says they face ‘purposeful discrimination’

WASHINGTON, D.C. (BP)–In a landmark legal brief that reads more like one from the ACLU or a gay legal group, the U.S. Justice Department argues that homosexuals exhibit immutable characteristics, have suffered a history of discrimination and that the federal government's marriage law is driven by prejudice.

The legal brief — called a watershed moment by gay groups — seeks to have only part of the Defense of Marriage Act overturned, but its legal reasoning goes much further. The same legal arguments have been used in successful state court lawsuits to legalize gay “marriage.” If adopted by a federal court, the arguments eventually could be used in overturning not just all of DOMA but also the traditional marriage laws in the 44 states that do not recognize same-sex “marriage.”

“[G]ay and lesbian individuals have suffered a long and significant history of purposeful discrimination,” the department's brief states, pointing to death penalty laws going back to Colonial times but also including current-day laws defining marriage in the traditional sense.

The Justice Department's legal role is to defend the nation's laws, but President Obama has ordered the department to stop defending the 15-year-old law in court. The House of Representatives has filled the void by hiring its own attorney.

The law, often called “DOMA,” has two primary functions: It 1) defines marriage for federal purposes as between a man and a woman and 2) gives states the option of not recognizing another state's gay “marriages.” The Justice Department's brief, filed July 1 in a district court within the Ninth Circuit, sides with a lesbian woman who filed suit to have the part of the law dealing with the federal definition of marriage overturned. She is a staff attorney within the Ninth Circuit who wants her partner to receive legal benefits. They received a marriage license in California before Proposition 8 passed.

But the Justice Department's arguments, while only targeting one segment of DOMA that would not directly impact state laws, could be used later to target those laws.

“If a federal court finds these persuasive for purposes of interpreting a federal statute, then when it comes to interpreting a state constitutional amendment [defining marriage], they'll have the exact same analysis,” Daniel Blomberg, an attorney with the Alliance Defense Fund — which supports the Defense of Marriage Act — told Baptist Press. “It will be identical. The government's argument here could certainly be used to strike down not only all of DOMA but to force this definition on all of the states.”

The ACLU and gay legal groups have been making such legal arguments “for quite some time.”

“What is uncommon about this is the fact that the Justice Department has signed on in such a vocal manner to what even proponents of this perspective are saying is a quote-unquote gay rights manifesto,” Blomberg said.

Joe Solmonese, president of the Human Rights Campaign — the nation's largest homosexual organization — called the brief a “watershed moment in the fight for LGBT equality.” Tara Borelli, an attorney with Lambda Legal, a gay group, called it an “historic shift with enormous significance.” Every presidential administration until the current one defended DOMA, and the Obama administration did so, tepidly, until this year.

The 24-page document broke new ground for the Justice Department by arguing that discrimination based on sexual orientation should be subject to what is called “heightened scrutiny” — a legal term that, if accepted by a federal court, would make it tougher to uphold the 1996 law. For heightened scrutiny to apply to gays, a four-part threshold would have to be met. It would have to be proven that homosexuals have suffered a history of discrimination, exhibit immutable characteristics, are a minority or politically powerless, and that the Defense of Marriage Act has no legitimate policy objective. The justice department contends that gays meet all four standards.

The Alliance Defense Fund and others who support DOMA argue that the law should be subject to what is called “rational basis,” which holds that as long as the legislature had a rational reason for passing the law, it can stand. Under rational basis, the court begins with a presumption that the law is valid. Generally, under “heightened scrutiny,” the opposite is true.

The Ninth Circuit Court of Appeals previously has held that sexual orientation should not be held to heightened scrutiny. That holding is binding on the current case.

“Heightened scrutiny is a much more difficult standard to pass,” Blomberg said. “Even if DOMA was subjected to heightened scrutiny, frankly it should pass. We're talking about a law that ensconces the definition of marriage that has been true throughout American history and really throughout all of human history. So there's nothing about it that should be subject to heightened review concerns.”

The Justice Department lists a series of instances of discrimination against gays, including a period in the 1900s when homosexuals were not eligible for federal jobs. It then goes one to argue that same-sex couples have “limited political power” and, as an example, it mentions the “political backlashes against same-sex marriage” with the adoption of state constitutional amendments explicitly defining marriage as between a man and a woman.

Perhaps the brief's most significant statement is that the Defense of Marriage Act was driven by prejudice.

“[T]he legislative history demonstrates that the statute was motivated in significant part by animus towards gays and lesbians and their intimate and family relationships,” it says, using a term that means spiteful or prejudiced.

Blomberg called the argument “plainly inaccurate.”

“The Defense of Marriage Act was passed by 84 percent of Congress and signed by President Clinton,” Blomberg said, “and all it does is state what has been the definition of marriage for the entirety of human history, and particularly for American history. Are they prepared to argue that all those definitions were entirely based on animus? It's an indefensible position. That makes no sense at all.”

The Justice Department brief further argues that the “overwhelming consensus in the scientific community” is that “sexual orientation is an immutable characteristic.”

Blomberg said his organization and others like it have argued the exact opposite.

“There is not sufficient evidence to show that this is really a definable class at all,” Blomberg said. “Sexual orientation is not immutable, it does change, and there are significant studies to support that and show that. And, of course, anecdotal evidence shows it on a broad scale, where you have individuals changing their sexual orientation on a regular basis.”

The brief was filed at a time when Obama is still, as least in his public statements, opposing gay “marriage.” But he has said he is “evolving” on the issue, and his actions have left both sides of the debate questioning where he really stands.

Said Borelli, the Lambda Legal attorney, “The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional. Lambda Legal has been arguing that for years — it's great to have them on our side. The Department of Justice is living up to its name in seeking to uphold the constitutional guarantee of equality for lesbian and gay people.”

The Justice Department initially filed a motion to dismiss the case, but then changed sides in the case and is now fighting against its own motion.

“It is just bizarre,” Blomberg said. “It's very unusual.”

The case is Golinski v. United States Office of Personnel Management.
Michael Foust is associate editor of Baptist Press. Read the brief online at

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