Back on July 1, the Department of Justice took a big step in defining what its Feb. 23 decision that the federal definition of marriage found in Section 3 of the Defense of Marriage Act is unconstitutional would look like. In Karen Golinski's case seeking equal health benefits for her wife, DOJ argued that the case should not be tossed out of court and should be allowed to proceed.
On Aug. 19, DOJ went a step further, telling a judge in the Southern District of New York that Edith Windsor -- who is seeking a refund of the more than $350,000 estate tax bill that she had to pay because her marriage to her deceased wife, Thea Spyer, was not recognized by the federal government -- should be granted that refund because DOMA's federal definition of marriage is unconstitutional.
In both cases, the Bipartisan Legal Advisory Group -- led by the House Republican leadership -- has taken steps to join the cases and defend DOMA in court after DOJ's February decision. In both, BLAG filed motions to dismiss the claims.
In Windsor's case, DOJ additionally was responding to a request by Windsor's lawyers that her case be decided on the law with no need for a trial and that Windsor -- represented by the American Civil Liberties Union and Paul, Weiss, Rifkind, Wharton & Garrison LLP -- accordingly be granted the refund she is seeking.
In concluding its brief filed on Friday in Windsor's case, DOJ -- led by Assistant Attorney General Tony West and signed by DOJ senior trial counsel Jean Lin -- argues, "Section 3 of DOMA fails heightened scrutiny, and this Court should deny the motions to dismiss Plaintiff's constitutional claim and grant Plaintiff's motion for summary judgment."
This is the first time the government stated affirmatively in court that a lawsuit requiring that Section 3 of DOMA be struck down as unconstitutional should succeed.
Besides that ultimate resolution urged due to the procedural posture of the case, the brief filed Friday is in almost all respects the same as that filed in Golinski's case.
Among the differences are the one that led to the initial Feb. 23 DOJ decision, which specifically referenced Windsor's case and a case, Pedersen v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders in federal court in Connecticut.
Under the Equal Protection Clause of the 14th Amendment -- applied to the federal government through the Fifth Amendment -- all laws that classify people into groups receive a level of scrutiny: rational basis, which is the lowest form of scrutiny; intermediate scrutiny; or strict scrutiny.
The factors used in deciding what level of scrutiny should apply include showing evidence of a "history of discrimination," that the group exhibits "immutable" characteristics, that the group's members are "minorities with limited political power" and that the characteristic "bears no relation to" the group's "ability to perform or contribute to society."
The U.S. Supreme Court has not made a determination about the level of scrutiny to apply to sexual orientation classifications, even in the two cases in which it struck down anti-LGBT laws -- Romer v. Evans and Lawrence v. Texas. On Feb. 23, though, Attorney General Eric Holder detailed in a six-page letter his and President Barack Obama's determination that some level of heightened scrutiny should apply.
In many of the federal appellate circuits across the country, the courts have ruled at some point on the level of scrutiny to be applied to classifications based on sexual orientation. In Friday's filing, however, DOJ notes -- as Holder had noted on Feb. 23 -- "The Second Circuit has not ruled on the appropriate level of scrutiny for sexual orientation classifications." The Second Circuit includes New York, where Windsor filed her case, and Connecticut, where the GLAD Pedersen case was filed.
DOJ's Aug. 19 brief then lays out its case for heightened scrutiny to apply to sexual orientation classifications, arguing that "careful consideration of the factors the Supreme Court has identified as relevant to the inquiry demonstrates that classifications based on sexual orientation should be subject to heightened scrutiny."
The other difference between the briefs filed by DOJ in Golinski's case and Winsor's case -- which could be related to the lack of a standard in the Second Circuit -- is that a footnote that was in the Golinski filing was not present in the brief filed in Windsor's case.
In its Golinski brief, DOJ noted, "Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this court holds that rational basis is the appropriate standard, as the government has previously has stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard."
That language is gone from DOJ's Windsor brief.
In addition to DOJ's filing, Windsor's lawyers also filed a response to BLAG, arguing in part that DOMA should be found unconstitutional -- even should the court decide that rational basis applies.
The court had set a timeline earlier this year for exchange of evidence among the parties and for the briefing that took another step forward on Friday. BLAG's reply is due by Sept. 2.