DOJ Files ‘Historic’ Anti-DOMA Brief


The Department of Justice has been praised for filing in court Friday a detailed opinion against the Defense of Marriage Act (DOMA) that bans federal recognition of same-sex marriage.

The court brief is filed in support of federal employee Karen Golinski who is suing to secure equal benefits for her wife, and comes in direct response to the House Bipartisan Legal Advisory Group’s filing to dismiss the case. This is the first substantial defense of DOMA lawyers acting on behalf of the Republican House leadership have put forth since the DOJ announced it would not defend Section 3 of the law in February.

The DOJ letter urges the court not to dismiss Golinski’s case, saying “Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 (‘DOMA’), unconstitutionally discriminates,” and goes on to recognize the federal government’s past “significant” and “regrettable” role in defending DOMA.

The DOJ contends that heightened scrutiny should apply in this case because of the “history of discrimination” against gay and lesbian people. As a basis for this assertion, it cites various acts of discrimination made by the U.S. Legislature, as well as state and local governments’ acts of discrimination.

The brief goes on to argue that DOMA fails even a rational basis analysis because it fails to fulfill a legitimate government interest.

The brief concludes: “…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 DOJ’s court filing has been likened to Judge Vaughn Walker’s 2010 ruling striking down California’s gay marriage ban known as Proposition 8 because of its clear and thoroughly supported finding that gay marriage bans are unconstitutional.

Indeed, the Human Rights Campaign has hailed the DOJ brief as “historic”:

The Administration’s decision to call DOMA what it is — a law that serves no purpose but to single out a group of people for second-class status — was a watershed moment in the fight for LGBT equality. Now the federal government has taken that historic stand a step further and put real meat on the bones of why there is no basis for DOMA to stand. This step represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.” — Human Rights Campaign President Joe Solmonese.

Up to this point the administration’s declining to defend the law has been just that: a withdrawal, not a fight.

The brief marks a “complete paradigm shift,” as Tobias Barrington Wolff, a law professor at the University of Pennsylvania, labelled it to the Associated Press, adding that it is a “concrete manifestation” of the federal government’s belief against anti-gay discrimination and their support for the constitutional rights of married same-sex couples.

You can read the brief in its entirety over at Metro Weekly.

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Photo used under the Creative Commons Attribution License, with thanks to alex-s.


Lilithe Magdalene

Yes! Now onward!

Lynne B.
Lynne Buckley5 years ago

One step in the right direction

K s Goh
KS Goh5 years ago

Thanks for the article.

Ellen Mccabe
Ellen m5 years ago

I really hope they crossed a t's and dotted all i's, because we can ill afford to make any mistakes if we are going to get DOMA repealed.
Thanks to the DOJ, at least we know someone in Washington is taking their job seriously!

Melanie Abbott
Melanie Abbott5 years ago

Like others have said, it's a start! Thank you.

Marilyn L.
Marilyn L5 years ago


go G.
C. G5 years ago


Linda E.
Linda E5 years ago

Congratulations to the DOJ for seeing the rationality of civil rights and human rights for all (which seems redundant, but we all know that some people have always been more equal than others).

Tami Kennedy
Tami Kennedy5 years ago

Haven't seen this on twitter, it will be now.

Tami Kennedy
Tami Kennedy5 years ago

A major step forward by the Department of Justice! I hope this is a sign of Pres. Obama's 'continuing struggle' with his philosophy regarding full equal rights for LGBT Americans. Hopefully the president's evolving beliefs are a part of this action and it is not an independent action of the DOJ.