A Justice Dept. brief takes an unprecedented government stand against sexual-orientation discrimination

"Some sentences in the brief," writes Metro Weekly's Chris Geidner, "will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination."

by Ken

No, the name of Karen Golinski didn't pop out at me either. But her name is attached to the lawsuit seeking equal health benefits at work for her wife, in the process arguing that the Defense of Marriage Act (DOMA) is unconstitutional, the lawsuit for which the House of Representatives' Republican majority bought its first piece of work from legal hired hand Paul Clement in its mission to defend the constitutionality of DOMA in the wake of the Obama administration's decision not to.

On June 3 Clement filed a brief with motions to dismiss (curiously, I can't find any citations for the brief itself, or its filing), and on Friday the Justice Department filed an opposing brief that Metro Weekly's Chris Geidner describes in an analysis today as "a must-read legal filing that became a historic document almost immediately upon submission." In his report Friday on the filing of the brief, in which Chris characterized the new DoJ brief as "arguing strongly that [DOMA] is unconstitutional in terms unparalleled in previous administration statements."

DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians.

The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 ('DOMA'), unconstitutionally discriminates."

In his analysis today, Chris writes that the brief --

is the single most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people. Moreover, although the case did not include transgender issues, the government's previously described position that the same legal standard should apply to gender identity classifications could prove helpful for court cases looking at gender identity-based discrimination.

Some sentences in the brief will become staples of every filing in every lawsuit attempting to advance sexual orientation nondiscrimination, most notably when the Justice Department acknowledged, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals." The Justice Department goes on to spend two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay.

This admission is an essential part of lawyers' arguments before courts when they are arguing why ''heightened scrutiny'' should be applied under the 14th Amendment's Equal Protection Clause to laws that classify people based on sexual orientation. To have an admission from the Department of Justice that the government did so is significant because lawyers can now go into court and say, "Not only do we think this, but so does the federal government – and they admit that they have been part of the problem."

The brief also goes extensively into state and local discrimination, "citing more than 20 different instances of state or local discriminatory practices – from laws and judicial opinions making adoption and teaching more difficult or impossible for gay and lesbian people, to police raids of gay bars, including notations of raids over the past years in Atlanta and Fort Worth, Texas." The brief even includes as an example of state discrimination the Tennessee law prohibiting localities within the state from passing laws prohibiting discrimination on the basis of sexual orientation. And the brief goes beyond establishing a history of discrimination -- one test used by courts to determine the applicability of "heightened scrutiny" under the Equal Protection Clause of the 14th Amendement -- "to address the others as well," Chris writes, offering the example of "political powerlessness" in the form of "the strong backlash in the 1970, 1980s, and 1990s" against new LGBT legal protections.

As Chris notes, the brief's unadorned declaration that "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," backed up by "two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay," which enables lawyers to "go into court and say, 'Not only do we think this, but so does the federal government –- and they admit that they have been part of the problem.'"

In the analysis today, Paul also notes that the brief was clearly being worked on at DoJ --

as Obama himself was taking some pretty hard hits –- and repeated questions –- about his commitment to equality due in large part to his ''evolving'' status and unwillingness to publicly embrace marriage equality. By not trotting out the brief in the midst of that criticism and waiting until after the White House LGBT Pride Month Reception to file, however, the administration made a strong statement that this brief was just that –- a legal filing removed from and independent of the political debate.

#