More than 130 House Democrats file amicus brief in second DOMA case

Amy Cunninghis and Karen Golinski House Minority Leader Nancy Pelosi, Democratic Whip Steny Hoyer and 130 other House Democrats have filed an amicus brief in another key case in the fight to overturn the Defense of Marriage Act on constitutional grounds. The 15-year-old act bars federal recognition of marriage equality by defining marriage as being solely between one man and one woman. It's the second amicus brief the same congresspeople have filed in a DOMA-related case in the past two months.

The latest amicus brief was filed on the side of the plaintiff in the case of Karen Golinski v. Office of Personnel Management, which, ironically, has reached the Ninth Circuit Court of Appeals. Golinski sued in 2008 when her employer, which is the Ninth Circuit Court, refused to grant spousal benefits for her wife, the same benefits that spouses of heterosexual employees receive.

Here's the crux of the matter in the amicus brief:

'[I]t is impossible to believe that any legitimate federal interest is rationally served by denying federal employees like Karen Golinski the opportunity to include their spouses on the health insurance that they purchase to safeguard their families' physical and financial health and well-being.'

In 2009, the Ninth Circuit's Chief Judge Alex Kozinski ruled in his administrative capacity that the denial of spousal benefits to Golinski's wife violates the court's anti-discrimination rules for employees. But the federal Office of Personnel Management said DOMA forbids extension of spousal benefits to gay and lesbian partners. Golinski sued. In early 2011, a U.S. District Court judge dismissed the suit for procedural reasons and told Golinski she could refile, which she did.

Meanwhile, however, the U.S. Department of Justice, which previously had defended DOMA in such cases, announced it would no longer do so. That prompted House Speaker John Boehner to convene the 19-year-old Bipartisan Legal Advisory Group to intervene. BLAG voted 3-2 in the spring of 2011 to order the House's Office of General Counsel to defend DOMA. It has since done so in several other cases.

In a brief responding to BLAG's effort to get Golinski's refiled lawsuit dismissed, DOJ stated:

"[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional."

The amicus filed by Pelosi and other House members notes, among other things:

Denying recognition to couples already married under state law does not further an interest in "procreation and responsible child-rearing."  DOMA does not prevent same-sex couples from marrying and an estimated 132,000 couples have now done so, with many of these couples raising children together.  There is no logical connection between the denial of federal recognition to these same-sex couples, who already are married, and the marital or parenting behavior of different-sex couples. It is irrational to claim that Congress needs to or should harm these families in order to benefit others, particularly as those families receive federal recognition regardless of DOMA.

While Congress has a legitimate interest in the welfare of children, Section 3 does not serve that interest. Children of married heterosexual couples are not affected by this law, and Section 3 actually undermines legitimate child welfare interests by harming children of married same-sex couples.  Congress should maximize the stability and security of these children, just as it does for children of married different-sex couples, by recognizing and respecting their parents' lawful marriages.

Section 3 does not protect, but undercuts, state sovereignty.  Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.

Signatories to the brief can be found here.