DOJ’s defense of DOMA Section 3: “you’re right, my bad”

Timothy Kincaid

July 7th, 2011

When the Justice Department announced that it would no longer be defending Section 3 of the Defense of Marriage Act against constitutional challenge, I assumed that meant that they would take the same approach that Gov. Schwarzenegger and AG Brown did towards Proposition 8: present no evidence and take no position.

However, in the case of Karen Golinski v. the United States Office of Personnel Management, the Administration did file in the case. Being the defendants, they filed a defense that begin this way:

Section 3 of the Defense of Marriage Act, 1 U.S.C, § 7 (“DOMA”), unconstitutionally discriminates. It treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court, discrimination based on sexual orientation is subject to heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.

GDad

July 8th, 2011

Wow. I wish all our adversaries worked that way.

Timothy (TRiG)

July 8th, 2011

That’s the most interesting “defence” I’ve ever seen.

TRiG.

jpeckjr

July 8th, 2011

Let’s see if House Spkr Boehner / Bipartisan Legal Advisory Group / Paul Clements will file a separate defense. Mr. Boehner and colleagues made a major public fuss about defending DOMA. And there was the widely reported (at least in GLBT media) story of Mr. Clements and his former law firm. But, I have heard nothing since from BLAG / Clements about, well, anything. I’d expect them to be filing defenses in every DOMA-related case by this time. We need to stay alert.

Donnchadh

July 12th, 2011

It’s more intelligent than the defence put up by NOM’s allies for Prop 8, more persuasive and of comparable effectiveness.

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