Golinski Has Her Day in Court, DOJ Sends Senior Lawyer To Argue DOMA's Unconstitutionality

Posted by Chris Geidner
December 16, 2011 5:10 PM |

The Department of Justice sent one of its top lawyers to federal court in San Francisco today to argue that the Defense of Marriage Act's federal definition of marriage unconstitutionally limits Karen Golinski's ability to secure health insurance for her wife.

Golinski's case, which began as an ordinary request to include her wife, Amy Cunninghis, on her federal employee health insurance plan, became, initially, a dispute between the branches of government about how court employees are managed -- and who can do so. Since then, however, it has evolved into its current status as a challenge to DOMA.

Pitting the House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG) against Golinski and the Obama administration, today's hearing presented the question to U.S. District Court Judge Jeffrey S. White whether Golinski's challenge should be dismissed and, if not, whether she should be granted a decision in her favor without a trial.

west.jpgAssistant Attorney General Tony West, the head of the civil division of DOJ, appeared in court to argue DOJ's position. Lambda Legal's Tara Borelli and Morrison & Foerster's Rita Lin represented Golinski. For BLAG, former George W. Bush administration Solicitor General Paul Clement did not attend the hearing but rather sent Bancroft PLLC's Conor Dugan, another lawyer who had served in the George W. Bush administration DOJ, to handle the arguments.

Speaking to Metro Weekly after the hearing, Borelli said, "Judge White thanked the DOJ for having sent the head of the civil division" to argue the case himself, adding that it made "a statement of the significance that DOJ and the administration place on this question."

According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, "was for a national security case." Prior to joining the Obama administration in 2009, West had been a partner at Morrison & Foerster in the firm's San Francisco office. Earlier in his time at DOJ, West was criticized for having signed his name to an administration brief filed in June 2009 that defended DOMA by arguing, among other points, that "DOMA does not discriminate against homosexuals in the provision of federal benefits."

This June, however, it was BLAG arguing in court filings that the challenge should be dismissed because, in passing DOMA Section 3's federal definition of marriage, "Congress reasonably could choose to extend federal benefits based on the historic definition of marriage rather than a recently-minted definition that would encompass same-sex marriages."

On July 1, DOJ countered that, arguing that under the equal protection clause of the Fourteenth Amendment (applied to the federal government through the Fifth Amendment), the "rational basis" that BLAG applied to Golinski's case was not the appropriate standard for classifications, like DOMA, based on sexual orientation. As DOJ had announced on Feb. 23, it and the president have determined that courts should apply some form of "heightened scrutiny" -- like that applied to classifications based on race, religion or sex -- which would require a defense of DOMA to be based upon a finding that the law advanced an important government interest.

Borelli said that now that the hearing is done, "We're going to be waiting for Judge White," adding that a series of questions he presented to the parties prior to the argument and his questions at today's hearing suggest that "he is intending to write a quite thoughtful and deliberative opinion."

As to his treatment of the arguments advanced by BLAG to support DOMA's constitutionality, Borelli said of White, "He really expressed some serious, significant skepticism at some of the arguments they were making."

In White's questions, he not only appeared skeptical of BLAG's arguments but also appeared at least curious about BLAG's view of its constitutional basis to be there at all. In one question, he asked, "What is the statutory authority for and evidence of compliance with the role that the Bipartisan Legal Advisory Group has assumed in this matter? Is this group actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?"

White went on to cite an earlier Supreme Court case about congressional representation in the courts, INS v. Chadha, in which he wrote that the court held that "Congress is the proper party to defend the validity of a statute when an agency of government charged with enforcing the statute agrees that the statute is unconstitutional."

Borelli also referenced the historic nature of the hearing, pointing out, "This is the first time that the lawyers BLAG has hired [to defend DOMA] have appeared in court. This is the first time DOJ has appeared ... to argue" its position that heightened scrutiny should apply to sexual orientation classifications and that, under that standard, DOMA should be found unconstitutional.

Read Judge White's questions: GolinskiHearingQuestions.pdf

[Photo: West (Photo from DOJ website.)]

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