And On the Sixth Day, Obama Made News on Same-Sex Marriage

Karen Golinski (right) with her wife, Amy Cunninghis

The Obama Administration filed a brief Friday in Federal court in San Francisco in support of a lawsuit filed by a lesbian federal employee which claims the government wrongly denied her spouse the health coverage she should have been entitled to as a spouse. This “strongly worded legal brief” says DOMA was motivated by “animus” against the gays and is therefore unconstitutional.

Tobias Barrington Wolff, a law professor at the University of Pennsylvania, told the press that “though the administration has previously said it will not defend the marriage act, the brief is the first court filing in which it urges the court to find the law unconstitutional.”


This brief represents the concrete manifestation of a complete paradigm shift in the federal government’s position on anti-gay discrimination and the constitutional rights of married same-sex couples.”

From The MetroWeekly:

Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder’s decision that Section 3 of DOMA — the federal definition of marriage — is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. Previously, the government had attached the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning. But, for Golinski’s case, DOJ did so. In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ’s lawyers — in describing how “gays and lesbians have been subject to a history of discrimination” — write, “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”

This comes shortly after the DOJ made a confusing move on a bankruptcy court case in California that seemed to go against its affirmation not to defend DOMA in court. To be perfectly honest, I’m not an expert in the matters of the law and I’m not going to pretend like I am. I do believe we have enlisted an expert of some kind to help explain some of this to you relatively soon, as we are wont to do, but THIS IS A BIG F*CKING DEAL, Y’ALL.

Some may call it an evolution — the DOJ went from saying they’d defend DOMA in court to saying that they wouldn’t, because it was unconstitutional, but not really going into the details, to now fully speaking out against DOMA with 31 pages on why they’re doing so. They are specifically citing “animus” towards gays and lesbians as THE ONLY REASON DOMA EXISTS — that’s a big deal.

Interesting that they did it on a Friday night, therefore keeping it relatively out of the news cycle — nobody started reporting on it until Saturday morning. I assume on the Seventh Day, there will be rest.

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  1. I’d prefer if on the seventh day there will be cake, but rest will do in a pinch. This is big news indeed and I wish I could feel excited. But my sister was supposed to adopt one of our cats that we can’t keep at our new place and she managed to lose the cat after less than 24 hours and right now I can’t feel anything other than rage and sadness. It’s been a confusing day. Maybe if someone will explain to my dumb, non-legalese-speaking self what potential ramifications this will have, I could be more happy?

      • But this news should make your feelings = :D

        Raksha: What it means is the beginning of the end of DOMA. If it has been found unconstitutional, the process will begin for the removal of it from the constitution. People who get married in a state that recognizes gay marriage can, in effect, claim marriage benefits at the federal level, for example: the foreign national of a binational couple can be sponsored for American citizenship by their spouse.

        Of course, the ‘process’ I refer to can undoubtedly get very messy, but we can always hope that this goes through smoothly enough.

  2. is there any reason (besides this being a super important and relevant news piece, and all) that we aren’t making a joke about her last name. i am too inebriated to think of a good one, but someone, please do

  3. I hate DOMA with very fiber of my being. I know I will see it die in my lifetime but must it take so fucking long?
    PS: I totally imagine DOMA being stabbed and bleeding ink like Tom Riddle’s diary in Chamber of Secrets.

  4. Fascinating stuff. I don’t know a tremendous amount about the US legal system – how high up would the DOJ’s brief have been approved from within that organisation? I guess what I am asking is, is Holder likely to have had personal involvement in this shift of position, or even Obama?

    • Dizzy, there’s essentially zero chance this went forward without being signed off on by Obama. DOMA is too much of a political grenade, and getting rid of it was one of his campaign promises. Going from:

      “We’ll defend DOMA because it’s the job of the DOJ to defend Federal law and the responsibility of the Congress or the Courts to repeal.” to:

      “We’re not going to defend DOMA any more because we don’t think it’s Constitutional.” to now

      “We’re really pretty damned sure DOMA is unconstitutional, and here’s a lot of detailed reasons why, and actually we think you should rule on that basis please.”

      Yeah, that’s a real turnaround.

      • Hugin, you seem to know what you’re talking about. Can you guess when would this thing go away? Like, Ballpark, how long?

      • I agree, I am POSITIVE Obama is in accordance with this, if not the very driving force behind it.

        Carmen: As for a timeline…it’s hard to say. Congress and the Senate will most likely get involved, and you know what a pain in the ass they can be. I’d guess (hopefully) a year or two before it can actually be removed from the Constitution, but it is AS OF RIGHT NOW, NOT BEING DEFENDED BY THE DEPARTMENT OF JUSTICE. Which is pretty awesome. You should go get married!

        • 2 years… *Deep breath* Okay, I guess I can live with that.
          Going to start planning the nuptials then!

        • @Randahl – Just for clarity, DOMA is not part of the Constitution. It is an Act. Acts are actions of Congress. It would have to be an amendment in order to be part of the Constitution. That is why it can (and should) be found “unconstitutional”, because it conflicts with the laws set out in the Constitution. If we were trying to repeal an amendment, we’d be in for a much bigger battle.

          • Ok, can my non-American self ask another question – if DOMA is clearly unconstitutional, why doesn’t an affected person or organisation challenge to it in the SC? *confusion*

          • It has to make it’s way through the courts to the Supreme Court, it can’t go directly to the SC (and it takes years of litigation). Also, even if it’s clearly unconstitutional, I don’t necessarily trust the SC to rule that way considering the justices who are currently on the SC.

          • Huh interesting, only one Court in our Federal system has jurisdiction to rule on Constitutional questions (it has appellate jurisdiction on all non-Constitutional matters), so there’s no need to go through a lengthy appeals process for a Constitutional challenge to be heard.

            “even if it’s clearly unconstitutional, I don’t necessarily trust the SC to rule that way considering the justices who are currently on the SC”

            That scares me more than I can say.

          • Oops! My extreme bad, my apologies. I knew it was an act of Congress, I’m not really sure why I had it in my head it was in the Constitution. Thank goodness it is not.

          • Lol that’s a new nickname to me, I like it. I’ve always used Fox Noise, and they ARE good at misinformation. I can’t tell if it’s intentional or not.

  5. These ‘wins’ make me giddy with excitement… hopefully a real step towards the Federal govt recognising same-sex marriage in some really important contexts – I will run down the street naked on the day that they recognise same-sex spouses for immigration purposes. My girlfriend is from NY, but I’m not American – and while I’m over the moon that I could now marry her, it’s frustrating that as a legally married couple we still wouldn’t be able to move back to the USA. C’mon Obama, knock knock, let me in! I miss bagels.

  6. Okay, the DOJ better not be playing with my heart. They keep giving me hope that DOMA might actually be repealed before my wedding next year. PLEASE DON’T TAKE MY HOPE AWAY.

    • That would be wonderful, but if it doesn’t happen, you can have TWO WEDDINGS. As in two cakes.

  7. I’m actually pretty confused over this. Officially, the president made a statement about how same sex marriage is an issue that he won’t get directly involved in, but this brief went through on behalf of his administration that he must have had a part in.

    I don’t really know what’s up with that. Why so anon, Pres. Obama?

    Also, I’ll be really happy when the country comes to its senses re this issue so we can move on to things like healthcare and gender identity discrimination law.

    • Obama coming out in favor of gay marriage probably does more harm than good in the short term. Can you imagine what happens if, right before the New York State vote, Obama makes a definitive statement in favor of equal marriage rights? Suddenly, tremendous pressure comes down from the national level onto all those Republicans on the fence, threatening them with every punishment under the sun if they voted yea. Gay rights balance on a knife edge in so many cases, adding the concerted opposition of everyone who hates anything Obama supports on principle…

      And then, behind the scenes, Obama maneuvers things into position where Executive branch powers can do some good. The DOJ has crafted a kind of legal trap for DOMA, one that, if all goes well, should kill it dead. Slow, but effective.

  8. Dear difficiledame

    It’s because I want a second term. And people are still crazy influenced by wingnuts.

    Yours sincrely,

    You know who.

    • “You know who”?
      Ha! I KNEW Voldemort was involved in this DOMA business!

    • ‘They’ as in Autostraddle or ‘they’ as the law? Because I’m pretty sure as far as the law goes, they only recognize women who marry men, men who want to marry men, and women who want to marry women. It would be nice if they mentioned trans* people too, while they’re at it, but I’m not surprised they didn’t.

      • I think ‘they’ as in DOJ.
        “gays and lesbians have been subject to a history of discrimination” … “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”

        ..And too fucking true, Jay.

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