November 10, 2010
Lambda Legal’s Jon Davidson on the DOMA lawsuits
Cross-posted from LGBTPOV.

By Karen Ocamb

While so much attention is being paid to the legal and legislative skirmishes over Don’t Ask, Don’t Tell, the Massachusetts-based Gay & Lesbian Advocates & Defenders and the ACLU’s LGBT Rights Project have been working on constitutional challenges to the federal Defense of Marriage Act. Lambda Legal has also been working on fighting DOMA and on Monday filed a brief in U.S. District Court for the Northern District of California in the case of Golinski v. United States Office of Personnel Management.

This is an interesting case because Karen Golinski is an employee of the U.S. Ninth Circuit Court of Appeals. She is suing the Obama administration’s Office of Personnel Management (OPM) and its openly gay Director, John Berry, to secure spousal health insurance benefits for her wife, Amy Cunninghis – the same benefits afforded spouses of the court’s heterosexual employees

Earlier this year, Ninth Circuit Chief Judge Alex Kozinski agreed with Lambda that refusing Golinski those benefits for her spouse violate the court’s own employment discrimination policy. He ordered Blue Cross/Blue Shield to enroll Cunninghis in the court’s plan. But OPM told Blue Cross/Blue Shield not to. Lambda is seeking an injunction against OPM – again, a department run by an openly gay man – to stop interfering with Kozinski’s orders.

Lambda says the brief filed yesterday is in response to questions raised Oct. 15th by federal District Judge Jeffrey S. White. Among the questions he asked was whether DOMA violates the U.S. Constitution. Lambda told White that he doesn’t have to decide the whole enchilada – whether DOMA itself is unconstitutional – only that Golinski’s case shows that DOMA’s application in blocking equal employment benefits is unconstitutional. The brief explains that DOMA is discriminatory because of “congressional disapproval” of how same sex couples exercise their fundamental rights of intimacy and marriage.

Jon Davidson, Lambda Legal’s Legal Director, said in a statement:

“The Obama Administration’s aggressive efforts to prevent the court from enforcing its nondiscrimination protections may lead to DOMA’s undoing. This began as an internal personnel matter, but the Administration has upped the ante.

The Executive Branch shouldn’t be interfering with the Judiciary’s efforts to avoid employment discrimination. Even more so, the Administration shouldn’t be invoking DOMA, a law it agrees is discriminatory, as a reason to prevent the courts from compensating their lesbian and gay employees equally. One federal court has already held DOMA unconstitutional. This could be the second.”

I asked Davidson to put the DOMA lawsuits into a broader context.

Here’s his reply:

“Unfortunately, the last two years saw no movement in Congress to put an end to DOMA’s harms and, given the election, we’re unlikely to see legislative progress for at least two more years.

When the government violates the Constitution and our elected officials refuse to do anything about it, it falls to the courts to enforce the Constitution’s promises of liberty and equality for all. We won’t be intimidated by the thugs at the National Organization for Marriage into shying away from demanding that the judiciary stand up to its responsibility to ensure that constitutional rights are protected, and we are confident that judges will follow their oaths to uphold our nation’s loftiest principles of justice.

DOMA has now been held unconstitutional by one federal district court judge and, with the latest suits by GLAD and the ACLU and the developments in Lambda Legal’s Golinski case, the constitutionality of DOMA is now at issue before three more district courts. It is only a matter of time before DOMA is struck down.

Denying federal benefits to same-sex couples who are lawfully married under the laws of the state where they live is an outrageous overreach by the federal government. Since our country’s founding, the federal government has respected state determinations of who is married and there is no reason except for prejudice to treat the marriages of same-sex couples differently. It is past time for the Department of Justice to admit that and to stop making arguments that are hurting LGBT people’s quest for equal rights.”

A hearing in the case of Golinski v. United States Office of Personnel Management is scheduled for December 17th. Lambda Legal represents Karen Golinski with James McGuire and Rita Lin of Morrison & Foerster LLP.

Government needs to butt out of marriage gay or straight.It is none of their business.All these law suits are just wasting tax payers money on issues that should be left to the voters not the Government.Marriage isn't a right and marriage isn't in the Constitution or the bill of rights,therefore Government doesn't need to waste time worrying about it.

so you think Congress should repeal DOMA?

How can the government not be involved when government related issues are tied directly to marriage? You ever done your taxes? Filing single or married give different credits. If you are married and you have insurance at work your spouse can be covered. There are inheritance laws, spousal privilege laws for courts etc. Te list goes on and on.

In response to Invictus

For over 200 years the Federal government has deferred marriage to the States.

The Federal government is not a state; its laws, based on the Constitution, are Supreme. In other words, all States must recognize and yield to Federal law. There can be no conflict between State and Federal Law.

DOMA is a federally established law which preempted States rights in creating or enforcing their own marriage laws and policies. The Federal government cannot have a Supreme law of the land and then allow states to override it as they see fit.

At the same time, there is a huge problem when legal issues are deferred to States power, but not recognized or upheld at the Federal level.

DOMA has created a serious conflict. Either laws pertaining to marriage are deferred to States or they are governed at the federal level, it cannot be both.

If States, in fact, have authority to regulate marriage within the state, then whatever laws they make pertaining to marriage must be recognized equally under federal law as with any other State’s marriage laws.

That means that a state has the right to extend marriage, inclusive of all state law and regulations, to any couple as they see fit. The federal government would then be required to accept the validity of any marriage which that state endorses and extend coverage of all federal law regarding marriage to anyone who has been married in that state.

In terms of gay marriage that means that a couple could possibly marry in any state in which their union is deemed acceptable. That couple is then free to move to any other state without invalidating, at the federal level, their marriage performed in another state.

The couple may not be considered legally married by their new home state and they would loose the coverage of law pertaining to marriage in that state. But their marriage would remain valid with regard to federal law.

That is what the 3 new legal cases are all about.

Thus the question, how do you think it will turn out? Would you keep marriage in the hands of the State or at the Federal level?

I have a lot of gay friends, two of which are about to adopt and they will make the most amazing parents. I find it interesting that we should be separating church and state and politics does anything but.

Religion is dangerous (note that I didn't say God) when wading in the pool of morality. The kind of hate that has been perpetuated by people claiming that it comes from God is obscene.

Republicans say that they want less government, but not if it means they have to stay out of people's bedrooms and tell a woman what she can and can't do with her body.

I love politics and I nearly can't help myself. I also wish I could do away with the party systems so that people can vote specifically on issues. Yet the amount of hipocracy that takes place on both sides (and bipartisanship is a pipe dream at this point) is mind numbing.

My gay friends love each other as much as any man/woman, they are faithful, they are intelligent, they VOTE, and there is no difference between there love and the love of any other. It's not anyone's choice to be straight just like it's not a choice to be gay. And imagine if everyone around you was gay and you were straight. Then imagine you fall in love and everyone is sitting up on a pedastal they built themselves in order to point a finger at you and say "you have no right" to love the person you love. You'd be outraged. This issue is outrageous. People need to wake up, educate themselves and stop hiding behind ignorance.

The divorce rate among straight couples is insanely high...maybe we should give someone else a shot at longevity.