This past week, the appeal of Karen Golinski's case seeking equal health insurance coverage for her wife began with the filing by the Republican-led House Bipartisan Legal Advisory Group asking the U.S. Court of Appeals for the Ninth Circuit to reverse the February trial-court decision that Section 3 of the Defense of Marriage Act is unconstitutional.
Today, parties in agreement with BLAG's view began filing amicus curiae, or "friend of the court," briefs explaining why the appeals court should reverse the decision by U.S. District Court Judge Jeffrey S. White.
Among the amicus filings is one by former U.S. Attorneys General Edwin Meese III, who served under president Reagan and John Ashcroft, who served under President George W. Bush, strongly criticizing the administration's decision -- including their successor, Attorney General Eric Holder -- to stop defending DOMA's federal marriage definition in court. The pair, while not directly addressing DOMA's constitutionality, filed their brief as one in support of BLAG and "reversal" of the trial-court decision.
Of the February 2011 decision by the administration to stop defending DOMA's Section 3, the pair -- represented by the conservative American Center for Law and Justice's Jay Alan Sekulow -- argue:
The administration's change of position marks an unprecedented and ill-advised departure from over two centuries of Executive Branch practice. Historically, the President's constitutional obligation to "take care that the laws be faithfully executed," has been understood to include the vigorous defense of Acts of Congress when they are challenged in court. In light of the President's oath to "preserve, protect, and defend the Constitution," two narrow exceptions have been recognized for instances in which a federal law either infringes upon the President's constitutional authority or is patently unconstitutional, leaving no room for reasonable arguments. Litigation challenging DOMA does not fall within either of these narrow categories (even under the Attorney General's reading of the statute).
After reviewing the instances of past administrations not defending statutes and defending others, however, the only real conclusion the pair seek from the court is minimal:
Due to the historical landscape addressed above, and the fifteen year history of DOJ's defense of DOMA, the decision to change course and challenge DOMA's constitutionality should be viewed as an extreme and unprecedented deviation from the historical norm and, as such, the persuasive weight afforded to DOJ's brief should be less than in the typical case.
The pair did not file a similar brief in the first DOMA case to reach an appeals court, Gill v. Office of Personnel Management. [UPDATE @ 12:30A TUESDAY: Such a filing would not have happened because the deadline for filing amicus briefs in Gill on the side defending DOMA passed in January 2011 before DOJ altered its position in February 2011.] The U.S. Court of Appeals for the First Circuit recently decided that case, upholding a trial-court ruling that DOMA is unconstitutional.
Another filing in Golinski v. Office of Personnel Management came from the attorneys general of 14 states, led by Indiana Attorney General Gregory Zoeller (R), and joined by the attorneys general from Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota and Virginia.
Although the Golinski case, brought by Lambda Legal, only addresses the federal definition of "marriage" and "spouse" contained in Section 3 of DOMA and not Section 2, which purports to give states the ability not to recognize same-sex marriages entered into elsewhere, Zoeller writes, "If the Court here invalidates Congress's political resolution of the marriage question for federal program purposes, it will implicitly negate the political resolutions of States that choose to adhere to traditional marriage."
The brief later expands upon that, claiming:
Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome.
In Gill, the Indiana attorney general led a similar filing and was joined by the attorneys general from Colorado, Michigan, South Carolina and Utah in defending DOMA's constitutionality. [UPDATE @ 12:30A TUESDAY: Again, the increased participation likely is explained by the fact that the deadline for filing amicus briefs in Gill on the side defending DOMA passed in January 2011 before DOJ altered its position in February 2011.]
Ten senators also filed a brief in Golinski defending the 1996 law: Sens. Orrin Hatch (R-Utah), Saxby Chambliss (R-Ga.), Dan Coats (R-Ind.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Charles Grassley (R-Iowa), Lindsey Graham (R-S.C.), Mitch McConnell (R-Ky.), Richard Shelby (R-Ala.) and Roger Wicker (R-Miss.).
Attorney Michael Stern represented the 10 senators, who argue that the district court was wrong in ascribing "animus" to the passage of DOMA, specifically noting that "the U.S. Court of Appeals for the First Circuit rejected the argument that Section 3 of DOMA could be ascribed to animus."
The senators also argue that DOMA advances a significant government interest, noting, among other reasons, that "there was a significant governmental interest in providing a uniform federal definition of marriage in order to avoid the likelihood of substantial litigation and inconsistent results regarding the eligibility of same-sex couples for federal benefits."
The National Organization for Marriage also filed a brief, as did the American College of Pediatricians, a conservative organization that filed a brief in Gill as well.
READ the briefs:
[Photos: Meese, left, and Ashcroft.]