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"Historic shift" on DOMA evident in DOJ brief filed last Friday

SAN FRANCISCO -- On Friday, the U.S. Department of Justice (DOJ) filed a brief strongly arguing that the Defense of Marriage Act (DOMA) is unconstitutional in a case brought by Lambda Legal and Morrison & Foerster LLP on behalf of Karen Golinski.

Golinski is a lesbian federal court employee who was denied medical coverage for her wife, whom she married when same-sex couples could do so in California.

The DOJ had previously announced they would no longer defend DOMA, but this is the first legal filing in the country in which they have fully argued to a court that DOMA is unconstitutional. In Friday's filing, they asked the federal court not to dismiss Golinski's claim.

The law is still being defended by legal counsel hired by the leadership of the House of Representatives.

Tara Borelli, Lambda Legal staff who represented Golinksi, applauded the DOJ's brief.

"DOMA is unconstitutional and there are no reasonable arguments left to defend it," she said. "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 31 page brief offered a detailed description of the history of discrimination by the government against lesbians and gay men and also provided evidence that the original passage of DOMA in 1996 was motivated by prejudice against gay people.

"The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," the brief stated.

The DOJ put forth a thorough argument, specifying that laws that treat lesbian and gay people differently must be subject to heightened scrutiny, and concluded that DOMA fails to meet the required legal test and is therefore unconstitutional.  

"This is an historic shift with enormous significance," Borelli said. "As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment."

In 2008, Golinski's internal employment discrimination complaint was acknowledged by Ninth circuit Chief Judge Alex Kozinski, who ordered the Office of Personnel Management (OPM), a part of the executive branch of the federal government, that she be given family coverage.

OPM ignored refused to allow health coverage for Golinski's spouse, despite Kozinski's ruling.

Lambda Legal and Morrison & Foerster LLP filed suit in a federal trial court last year seeking to stop OPM's interference with Chief Judge Kozinski's order that Golinski receive equal treatment. Last Friday, Lambda Legal and Morrison & Foerster filed a motion for summary judgment, asking the trial court to make a final ruling in Golinski's favor.

"Unfortunately, this battle isn't over yet," said Rita Lin, an associate attorney for the co-counsel in this case. "The lawyers representing the House leadership are still fighting us in court, and until DOMA is struck down by a court or repealed, Karen Golinski still cannot enroll her wife in her family health plan.  She works every day with co-workers who can cover their spouses, but she cannot."

Lambda Legal's team consisted of Tara Borelli, Susan Sommer, and Jon Davidson, who worked closely with Morrison & Foerster's Rita Lin, James McGuire, Gregory Dresser and Aaron Jones to represent Karen Golinski in her historic case against OPM.

For more information about Lambda Legal or this court case, click HERE. You may follow Lambda Legal on Facebook HERE.