Judge in Golinski asks uncomfortable questions for those who favor discrimination

Timothy Kincaid

December 16th, 2011

Today Justice Jeffrey White heard testimony as to whether the federal Defense of Marriage Act (DOMA) was in violation of the US Constitution when it was applied to deny spousal benefits to Karen Golinski, a legally married federal employee. In advance, White, a George W. Bush appointee, provided a list of questions that he wanted addressed. It can’t have been a happy day for Paul Clement when he saw them.

The list of ten questions began with:

1. The passage of Section 3 of the Defense of Marriage Act (“DOMA”) marks a unique departure from the recognition the federal government historically has afforded to State marital status determinations.

It quickly trotted on to such inquiries as “What is the authority for the position that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?” and “How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?” and “How does BLAG’s argument about the tradition of heterosexual marriage differ from the miscegenation context?”

And surely when he came to number 9 Clementi must have cringed:

9. To the extent the Court decides the issues presented on the motion for summary judgment…

This does not mean that White will rule in Golinski’s favor or that the ruling will apply broadly should he do so. But it does suggest that White has no concerns about the arguments made by Golinski’s counsel but is finding the arguments presented by DOMA’s defense to rely on assumptions that White was not willing to make.

Adding sway to Golincki’s case, the head of the civil division of the Department of Justice showed up to argue in her behalf. This is but the second time that Assistant Attorney General Tony West has personally appeared in court to represent the Government and his appearance signaled the significance with which the Obama Administration has begun to take the issue of marriage equality.

Of course one can never tell how a judge will make their determination. But, at this point, things look encouraging.


December 16th, 2011

Sounds like the briefs citing George Rekers and Paul Cameron aren’t helping Clement any.

Timothy Kincaid

December 16th, 2011

Alvin, no kidding? Didn’t know he cited Rekers and Cameron. Justice White is clearly not amused by anti-gay stereotypes and that could really work against Clement.


December 16th, 2011

So, are you saying that the Justice Dept is not only not defending the law, but they are helping in the argument to overturn it? I haven’t heard this from anywhere before.

a mcewen

December 16th, 2011

Clement was pushing a brief which cited rekers and cited cameron via another “researcher.”


December 17th, 2011

Reading those questions, it looks as though BLAG has an uphill road — a very steep one.

But then, they always did.

Tony P

December 17th, 2011

Support for bigoted measures withers in the courtroom.

Because in the courts, facts matter. If one cannot support a fact, then the court is not bound to take it into consideration.

Regan DuCasse

December 17th, 2011

I think the precedent here had to cite issues between men and women and the WOMAN’S role in marriage as the submissive, non autonomous half. The opposition to ssm is relying on archaic standards when one role in the marriage was SEVERELY limited BASED on gender.

And as I knew would happen in Walker’s decision, and stated myself, the government cannot and will not determine what individuals can or cannot do ACCORDING to their gender. Gender doesn’t especially make up those rules all by itself, even among individuals. At least where it matters the most, it’s exceptionally private.

The other factor, the miscegenist one is that it’s a precedent regarding DIFFERING or OPPOSING COLORS or ethnic definitions.
The definition of sexual orientation assumes that heterosexuals will marry someone of their same orientation and that by that precedent, a homosexual should marry someone who shares their same orientation.

There may not be as many legal precedents when it comes to sexual orientation, but it would be REASONABLE and PREFERABLE that those of the same sexual aspects, would be attracted to each other and most compatible.

I remember one of the miscegenist arguments was that the mixing of racial groups would contaminate the species. As if blacks were an inferior type, or that their genetic factors would retard or lessen the abilities of their progeny if raised in a mixed (i.e. “confused”) setting.
In other words, it was a CONTRA procreative argument.

Whereas the argument against ssm is that ss couples CAN’T spontaneously procreate.
Or that whatever children they have by other means will be retarded or lessened (i.e. “confused”) in their social adjustment in comparison to children raised by hetero couples.

Since neither dire outcomes have been borne out, because whaddya know, all persons are essentially EQUAL in these precedents, there IS no case against ssm. No matter WHAT previous discrimination there has been, there is no rational, nor reasonable basis to continue it.

To say nothing of the obvious fact that a thrice divorced Senator wrote and sponsored DOMA and an adulterer signed it.
Effectively rendering DOMA incapable of protecting the integrity of marriages, or the example that marriage is supposed to represent.

8 and DOMA supporters are now arguing more in favor of TECHNICALITIES, than the substance of why we’re all in court in the first place.

Eric in Oakland

December 17th, 2011

I found the four questions under number seven to be the most interesting part of that document. Even under the rational basis test, there are no answers to those questions that can stand up. Anything they say will just prove that the true motive is blatant bigotry and nothing more.


December 17th, 2011

I love 7d.


December 17th, 2011

Number 7 made me smile.


December 18th, 2011

simply awesome, i looked at awe at the list even though i don’t fully speak/read legalese i have to say the judge hit the nail on the head with these questions. I particularly like, how does sharing the rights effect str8 married couples, just because it was once defined as man and woman that doesn’t protect it from scrutiny so why continue it, and what non-religious partisan-free modern scientific evidence do you have to offer that proves that homosexual families are harmful to society or their children. WOOT can’t wait to see what the idiot drum up and when they start spewing their rhetoric i hope the judge shoots down their religious, republican, and 1970/80’s crap!

Donny D.

December 19th, 2011

#5 is just vicious, questioning the validity of BLAG’s very existence and its moral authority to take on this case, and even its funding.

I will LOVE to see how the pieces of crap speaking for BLAG answer this one. I’m wondering if the court isn’t intending with this one to deny BLAG standing. Or are we past that part of the proceedings?

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