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DOJ: Court Should Not Dismiss Karen Golinski’s Health Benefits Claim, Should Instead Find DOMA Unconstitutional
The Dept. of Justice argues that DOMA fails intermediate scrutiny, thereby making it unconstitutional under the Equal Protection Clause of the 5th and 14th Amendments. In evaluating whether such statutes are unconstitutional, the Supreme Court developed three levels of scrutiny: strict scrutiny, intermediate or heightened scrutiny, and rational review.
The Supreme Court has held that immutable characteristics such as race and gender warrant heightened scrutiny of statutes that discriminate against a suspect class of people. Statutes that discriminate on the basis of race warrant strict scrutiny (the highest level of scrutiny). Statutes fail strict scrutiny if they are not narrowly tailored to serve a compelling governmental interest and there is no less restrictive means to accomplish the purpose of the statute.
The Supreme Court has ruled that statutes that discriminate on the basis of gender warrant heightened or intermediate scrutiny, but not strict scrutiny. Statutes fail the intermediate scrutiny test if they are not substantially related to the governmental interest the statute claims it furthers. In order for a law to survive the rational basis test, it must simply show that it is rationally related to any governmental interest.
The DOJ has moved from the position of passively not defending DOMA to affirmatively arguing against it, asking the Court to find it unconstitutional on the basis that it fails intermediate scrutiny — which is to say that the DOJ is affirmatively stating that sexual orientation is an immutable characteristic.
However, as the Supreme Court has also held that marriage is a fundamental right, which also triggers a strict scrutiny analysis, an argument can be made that strict scrutiny should be applied. While both race and gender are immutable characteristics, they do not warrant the same level of scrutiny according the Supreme Court.
According to the Court, race is not only considered immutable, but also considered discrete and insular, whereas gender is not insular because women comprise half of the population. As such, from a legal vantage point, an argument could be made that sexual orientation is not only immutable, but also discrete and insular, thereby triggering a strict scrutiny analysis.
Nevertheless, the DOJ’s position is historic insofar as they are affirmatively arguing that gays and lesbians are a suspect class with immutable characteristics, warranting a heightened scrutiny analysis when the object of discrimination. No previous DOJ or administration has taken such an affirmative stance.
From Metroweekly:
[T]he Department of Justice filed a brief in federal court employee Karen Golinski’s federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.
In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government’s “significant and regrettable role” in discrimination in America against gays and lesbians.
[…]
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.
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