Acknowledging the Past

News Analysis: DOJ's admission of the ''regrettable role'' of the federal government in anti-gay discrimination – and criticism of state and local discrimination – is historic

The Department of Justice’s July 1 “Defendants’ Brief in Opposition to Motion to Dismiss” in Karen Golinski’s lawsuit seeking equal benefits at work in the federal courts so that she can insure her wife is a must-read legal filing that became a historic document almost immediately upon its submission.

Obama
President Obama at the 2011 White House LGBT Pride Month Reception
(Photo by Ward Morrison)

In opposing the House Republicans, who filed a brief in June seeking to have Golinski’s case dismissed, the Department of Justice went much further than Attorney General Eric Holder did in the Feb. 23 letter he sent to House Speaker John Boehner (R-Ohio) – the letter that detailed his and President Barack Obama’s decision that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that they would no longer defend it in court.

What’s more, this brief was being researched and written 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.

The brief, filed in the Northern District of California, 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.”

What’s more, Justice took a hard line against 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.

Immediately after describing Romer v. Evans, the Supreme Court case striking down Colorado’s anti-gay constitutional amendment because the court found it to be based on “animus,” the Justice Department highlights the fact that earlier this year “the Tennessee [L]egislature enacted a law stripping counties and municipalities of their ability to pass local non-discrimination ordinances that would prohibit discrimination on the basis of sexual orientation, and repealing the ordinances that had recently been passed by Nashville and other localities.”

Although the Department of Justice didn’t take a position on the constitutionality of the law, the choice to describe the law as an example of continued state discrimination – immediately following the mention of Romer– is exceptional. The discussion of state discrimination also serves as a specific example — several specific examples, in fact — of the limits to state decision-making on such issues.

Establishing a history of discrimination is just one part of the test courts use for deciding whether heightened scrutiny applies, but the Justice brief goes on to address the others as well. In describing the issue of ”political powerlessness,” for example, the Justice Department detailed ”[t]he strong backlash in the 1970s, 1980s, and 1990s to … civil rights ordinances” aimed at protecting LGBT people and ”similar political backlashes against same-sex marriage” in the past decade.

In short, the Department of Justice put the imprimatur of the federal government behind the arguments advanced for decades by Lambda Legal, Gay & Lesbian Advocates & Defenders, National Center for Lesbian Rights and many others. And it did so in a very concrete case, a dispute in which a woman is seeking to have the same health insurance coverage for her wife that a male employee can have for his wife.

The Golinski filing by the Justice Department, although only another step in the long march to LGBT equality, will leave a long-lasting – and large – footprint on the legal landscape.

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