House Democratic Leader Nancy Pelosi files amicus brief attacking DOMA in 9th Circuit case Golinski v. OPM
July 10, 2012
By Scottie Thomaston
This morning, House Democratic Leader Nancy Pelosi, along with Congressman Jerrold Nadler (D-NY) and 130 House members filed an amicus curiae (“friend of the court”) brief in Golinski v. Office of Personnel Management in the Ninth Circuit Court of Appeals. The case is currently scheduled for oral argument on September 10 at the Ninth Circuit. And last week the Justice Department filed a petition for a writ of certiorari to the Supreme Court in the case. Since the Justices’ summer vacation doesn’t end until after oral argument in the case, it will proceed, as they will not have an opportunity to decide on whether or not to take the case until late September or early October.
The Bipartisan Legal Advisory Group (BLAG) is defending the law on behalf of the House, but no Democrats voted to allow BLAG to defend the case.
According to the summary of the brief, the main argument House Democrats make is that DOMA was passed quickly and without much discussion. The conclusion that can be drawn from that according to the brief is that it was passed simply to disparage gays and lesbians. House Democrats also suggest that heightened scrutiny applies to cases affecting gays and lesbians:
Heightened scrutiny applies: the brief agrees with Justice Department’s position that lesbians and gay men are an identifiable minority group that lack sufficient political power to obtain the consistent and favorable treatment of lawmakers; as a result, they need the protection that heightened judicial review provides.
- Congress’s treatment of gay men and lesbians illustrates that this group has been unable to prevent harmful laws or achieve desired policy results that directly impact their lives.
- Gay men and lesbians are a historically disfavored minority that has often been targeted for legislative action based on stereotypes and bias, making it inappropriate for courts to grant laws like DOMA the same presumption of validity afforded to most acts of Congress. Instead, laws that single out gay men and lesbians for harm warrant judicial skepticism and heightened review. This requires the government to show that Section 3 serves a significant federal interest, and even BLAG seems to concede that it loses under this standard.
The brief suggests that were judges disinclined to apply heightened scrutiny, the law would not survive under rational basis scrutiny, and “[n]one of the reasons provided by Congress in 1996 or created in response to litigation rationally serve a legitimate federal interest”. House Democrats also write that DOMA undercuts state sovereignty:
Section 3 does not protect, but undercuts, state sovereignty. Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.