DOJ files appeal in the DOMA case

January 14, 2011 at 6:08 am 59 comments

By Adam Bink

As posted yesterday in the comments, the Department of Justice filed an opening brief in the appeal for the Gill v. OPM case regarding the constitutionality of Section 3 of DOMA. As usual, courtesy of Kathleen, the full document in Scribd form is below.

View this document on Scribd

I spent some time reading through it this morning, and I think Richard Socarides’ comment is about on (via Politico):

“There are some improvements in tone in the brief, but the bottom line is the government continues to oppose full equality for its gay citizens,” said Equality Matters chief Richard Socarides in an email. “And that is unacceptable.”

You may remember Richard wrote a very well-done piece over at AMERICABlog on whether the Administration had a responsibility to defend the statute back in June 2009 when the government filed an egregiously offensive brief in the case. The entire piece is worth a read if you haven’t read it. This version is with a much lighter touch, but makes many of the same assertions re whether the county has moved along on this issue (they point to few states allowing same-sex marriage, and many “reaffirmed” their support for restricting marriage to opposite-sex couples), whether there is a rational basis for discrimination (they argue there is), and so forth.

Chris over at Metro Weekly has a good summary of the general reasons laid out for why the law should remain:

1.    Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2.    Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3.    Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

I’m with Chris in believing these are shades of the same assertion. In any case, we will see how this plays out. I’m looking forward to seeing the response piece from our side.

Entry filed under: Marriage equality.

The out-of-touch choir to which Tim Pawlenty preaches Utter deception or utter delusion?

59 Comments Add your own

  • 1. Bob Barnes  |  January 14, 2011 at 6:16 am

    See you in court!

    • 2. Kathleen  |  January 14, 2011 at 8:06 am

      I just wanted to point out that this is the government’s opening brief in both DOMA cases – the one by the individual plaintiffs and the one by the state of Massachusetts. The Court gave the government permission to consolidate the two cases for the purposes of briefing. And as someone said, we will likely see separate response briefs from the two parties when those come in on March 1.

  • 3. Ed Cortes  |  January 14, 2011 at 6:19 am


    • 4. Ronnie  |  January 14, 2011 at 8:15 am

      (sighs)…me too…. : I ….Ronnie

    • 5. Ann S.  |  January 14, 2011 at 8:55 am


    • 6. Rhie  |  January 14, 2011 at 1:41 pm

      me three

  • 7. bJason  |  January 14, 2011 at 6:31 am

    When is our side’s response due? Should we expect two responses (one from the state of Mass. and one from GLAD – as these are two cases)?

    • 8. bJason  |  January 14, 2011 at 7:41 am

      OK – I just found that the response is due March 1.

  • 9. anonygrl  |  January 14, 2011 at 6:35 am

    I definintely want to see what our side’s answer to their basic argument that DOMA holds the status quo while states determine the marriage rights issue is.

    It seems to me that this is an argument that could very easily end up biting itself in the back, because if the court determines that DOMA actually IS unconstitutional in one state, this argument means that it is unconstitutional everywhwere, and that, it seems to me, would work to make same sex marriage legal everywhere pretty quick, wouldn’t it?

    • 10. bJason  |  January 14, 2011 at 6:39 am

      These cases are only challenging Section 3 of DOMA – for Federal purposes, marriage is one man, one woman. Section 2 – states don’t have to recognize SSMs of other states – would remain in tact.

      If fully successful, this should open up Federal Benefits/obligations, etc. to SS married couples but won’t change anything else.

  • 11. Andrew_SEA  |  January 14, 2011 at 6:37 am

    Does that mean we can pay less taxes then?

    I would be interested in a response as well… Legally supporting discrimination will only embolden the bullies to come out of the woodwork.

    There will be “state sanctioned” increases in violence towards the LGBT community and the only excuse given will be based on “faith” or religious views.

    This needs to be stopped!

  • 12. BENNETT  |  January 14, 2011 at 6:43 am

    Kinda reminds me of the defense of slavery act. Which, as I remember, was enacted with the same rational basis–too preserve states right to a period of due diligence and deliberation on whether or not accept the traditional place of the the then recognized portion of black persons in American society. Then captain Butler uttered the expletive heard round the world and Mrs oleary kicked over a cow and the south caught fire and burned all the way to Savannah. I’m a little foggy on historical details, but isn’t this just a while lotta history repeating its self? DOMA, DOSA, its all the same thing. Just this time it isn’t the british coming, it the war of second ammendment remedies and Mr palenta’s Protestant wind.

    • 13. Michelle Evans  |  January 14, 2011 at 11:32 am

      It is also very similar to the idea concerning interracial marriage. When there were many states that did allow the marriages, such as became legal in California something like 20 years before Loving v Virginia, there was never a question at a Federal level that those legal marriages were not recognized Federally before 1967. Those marriages were recognized immediately.

      So, for them to use the argument today that it is okay to not extend Federal benefits while these various states “experiment” with same gender marriage and see how it all goes, why would not the same argument have been used prior to 1967 for all interracial marriages? And since that argument was not used then, how can it be used today?

      I would hope that our side would then point out in their response how absurd the argument is that the Feds have to sit back and wait for this “experiment” to run its course before making a decision since that was never the case with any other marriages that were outside the “norm” at various times throughout America.

      • 14. RWG  |  January 15, 2011 at 10:41 am

        Section 3 of DOMA really has little to do with the states. Civil rights in this country are individual rights which the government may not take away. The right to equal justice before the law and equal protection of the laws are guaranteed to individual citizens, not to states. When the Federal government refuses to recognize a couple as married, even with a proper license from the state, it is discriminating against those two individuals and denying them their rights to equal protection of the laws, liberty and due process.

        Section 2, which allows states to refuse to recognize a marriage legally concluded in another state violates the full faith and credit clause and can be dealt with in later litigation.

  • 15. Ed  |  January 14, 2011 at 7:03 am

    Having just read pages 24-30, it is totally obvious DOMA is unconstitutional. Hell, anyone with 1 eye and half a brain can see that. Well….except for NOM, anything to keep the money rolling in. Speaking of NOM, I really think Bryan believes in his cause wholeheartedly, Maggie however knows (deep in her “heart”) that this is a losing battle….thoughts?

    • 16. BENNETT  |  January 14, 2011 at 7:15 am

      I agree. Maggie is compromised by greed. Brian just by stupidity. Maggie Haas’s taken the tithes for so long that she just can’t tell her adoring flock that her sermon from a while back was just wrong. I think it was the one where she was preaching easy believeism

      • 17. BENNETT  |  January 14, 2011 at 7:19 am

        And then discovered acts 2:38. And then decided that it was better to keep her job and let her fans um flock perish so as to preserve the ecumenical momentum towards a return to Leviticus.

    • 18. Bob Barnes  |  January 14, 2011 at 9:13 am

      From what I understand, Brian is more committed to the Catholic/religious “stop this by all means” piece. Maggie played more of the Conservative with Values angle. Understanding this, you can see which one will take to reality and which one will be become fanatic.

  • 19. Leo  |  January 14, 2011 at 7:13 am

    One point in this brief that seemed significant to me was that the government is NOT appealing the ruling that the justifications advanced by the Congress (responsible procreation etc.) are all irrational. As I understand it, that means these potential lines of argument are now dead all the way to the Supreme Court, even if we have a Republican president by then.

    • 20. Kathleen  |  January 15, 2011 at 11:57 am

      The DOJ could choose to resuscitate this argument at any time. In fact, under rational basis review, the Court can come up with its own “rational” reason to justify the law, even if that reason isn’t put forth by the parties. However, I don’t think this current DOJ is going to use this argument, if for no other reason than they see it as being logically inconsistent with case law on marriage rights.

  • 21. Lesbians Love Boies  |  January 14, 2011 at 7:14 am

    I like how the Government threw out the procreation argument on Page 29

    “the government does not contend that DOMA serves a governmental interest in “responsible procreation and child-rearing.””

    • 22. anonygrl  |  January 14, 2011 at 9:06 am

      Perhaps they looked at how WELL that argument worked in the Prop 8 case, and thought the better of it.


  • 23. Ed  |  January 14, 2011 at 7:15 am

    Really, can one imagine life at Bryan Browns house?
    Hey dad, can we go play some baseball?
    -No son, I have to worry about the gays….
    Hey dad, can you help me out with homework?
    -No son, I have to worry about the gays….
    Hey dad, we’re having a family dinner…
    -No thanks, I can’t eat with all the gays being equal…
    Hey dad, we’re about to go to church…
    -I can’t go, these gays are getting married, and i have
    to figure out how to stop them…
    Hey honey, I thought we would go on a cruise for our wedding anniversary…
    -I can’t go on a cruise, with all these gays getting
    married, our marriage just isn’t worth as much

    I mean really, what kind of life is that??

    • 24. anonygrl  |  January 14, 2011 at 9:07 am

      Culminating in:

      -Hey dad… I’m gay.
      -Oh. Damn.

      • 25. Michelle Evans  |  January 14, 2011 at 11:15 am

        Statistically speaking, considering how many children this guy now has in his brood, there is a really good chance that one of them will turn out to be gay.

        Can you imagine growing up in a family as vehemently ant-equality, while knowing that your own father is the primary mover against LGBT people? That poor child would be forced so far into the back of the closet that it would be a miracle if they were ever to find the light of day.

        • 26. Michelle Evans  |  January 14, 2011 at 11:22 am

          And as a follow-up to that: When I came out as trans to one couple who had been supposedly great friends with Cherie and I for 25 years, their reaction was so horrific and vitriolic that they started yelling and screaming obscenities at me.

          Their then 14 year old daughter has always struck me as a person who could possibly be transgender. There were many of the signs I recognized from myself at that age. I may be totally wrong–and hope that I am, actually–because I can only imagine what would have happened to her if she had eventually come out to her parents. When she saw how they treated one of their supposed best friends when I came out to them, if she is trans, she would never feel safe in her own home if they ever found out about her, so she would remain closeted and in despair the rest of her life.

        • 27. Kathleen  |  January 14, 2011 at 11:47 am

          And this is all the more reason we must be open and vocal. It is not only our rights at stake here, but the lives of children everywhere. They need to know there is somewhere to turn; we need to keep working to make this a better and more accepting world for them to step into when they survive and escape their families.

          • 28. Lesbians Love Boies  |  January 14, 2011 at 11:54 am

            Can you imagine how inflamed NOM, FRC, AFA would be if homosexual parents kicked their child out to the curb because the kid was straight?

  • 29. rocketeer500  |  January 14, 2011 at 7:29 am

    Is there a pdf link somewhere? I can’t read Scribd.

  • 33. Kathleen  |  January 14, 2011 at 8:48 am

    S.F. Bench Losing Its Lesbian Pioneers

    From the article
    Judge Mary Morgan , who was first appointed in 1981 to the San Francisco Municipal Court by Gov. Jerry Brown, is set to retire in March. When Brown appointed her, she was hailed as the first openly lesbian judicial appointee in the nation.

    Judge Donna Hitchens has already stepped down and is sitting by assignment, 20 years after she challenged her way onto the bench.
    As a young law grad, Hitchens founded Lesbian Rights Project, a public interest firm that later became the National Center for Lesbian Rights….

  • 34. Joel  |  January 14, 2011 at 8:58 am

    Can someone instruct me in the technique of embedding a YouTube clip into my comment? I’m doing this on my iPod, but if I need to do it on a computer, I think I can make it from my couch to the Mac, LOL. I have something I’d like to share with you all, though I’m not quite sure why.

    • 35. Bob Barnes  |  January 14, 2011 at 9:07 am

      Youtube should provide you with the embed code. Just copy it and paste it into the comment box.

      • 36. Joel  |  January 14, 2011 at 9:14 am


  • 37. chris from co  |  January 14, 2011 at 9:06 am

    My thoughts on this I wished the DOJ came out swinging with stupid ideas like the NOM does. It makes the case easier for us to say did you hear that crap, it makes no sence. However they took the high road wich makes it easier for the court to look at their argument and give it more respectful thought. The first 22 pages or so I thought the brief could have been written by our side. It felt weird. I have to admit I did like them pointing out that marriage has over a thousand laws that the federal gov’t offers to married people of the opposit-sex that we are denied under DOMA.

    • 38. rocketeer500  |  January 14, 2011 at 10:50 am

      I agree. The brief was rather somber. Makes me wonder if this is the DOJ’s new strategy? Cut out all of the polarized words and statements and approach the appeal being rational.

      Simply scary!!

  • 39. Joel  |  January 14, 2011 at 9:21 am

    Okay, let me give this a try:

    Ladies and gentlemen, and everyone in between, the final performance of those two joy killers, DOMA and DADT!

  • 40. Joel  |  January 14, 2011 at 9:23 am

    Well damn. That worked just fine, but there’s a licensing provision that makes it impossible to watch. At least I know how to do it now!

  • 41. Ronnie  |  January 14, 2011 at 9:35 am

    The folks over at Children’s Hospital Boston say “It Gets Better”……<3….Ronnie:

  • 42. Theresa  |  January 14, 2011 at 10:16 am

    Does anyone know the names of the First Circuit Judges who are hearing the case?

    • 43. Kathleen  |  January 14, 2011 at 10:38 am

      I’m not sure they’ve been made public yet. In the 9th Circuit, the names aren’t announced until one week prior to oral arguments. Not sure if the same rule applies in the 1st Circuit or not. And as far as I know, oral arguments haven’t been scheduled yet.

  • 44. Carpool Cookie  |  January 14, 2011 at 10:21 am

    I haven’t been able to review the brief, but the government (which is of course made up of many branches) is in a weird position now, with DADT in the process of being repealed….while the Justice Department (ironic that the word “justice” would surface on the side of oppresion) is arguing DOMA is defensible.

    Kind of makes you wonder if the government could be accussed of NOT operating in good faith…which is a key legal standard.

  • 45. Sagesse  |  January 14, 2011 at 11:02 am

    Can’t even find time to read the post… have no idea when I’m going to get to 174 pages of DOJ brief… why are all the anti-equality lawyers so long-winded?

    • 46. Kathleen  |  January 14, 2011 at 11:11 am

      They’re hoping to hide the fact they have no substance by burying it in a lot of verbiage.

  • 47. chris from co  |  January 14, 2011 at 11:53 am

    Is anyone keeping track on the Washington case today at the supreme court, or do I have the wrong Friday.

    • 48. Kathleen  |  January 14, 2011 at 11:57 am

      IFIRC, today was just the private conference to decide whether they will accept the case. I don’t expect an announcement on the outcome until early next week at the earliest.

  • 49. Ronnie  |  January 14, 2011 at 12:10 pm

    Yes the youth of America are speaking & demand that their voices be heard……..


    “12-year-old Augusta ‘Gus’ Dexheimer is one of those young activists who gives you hope about the future of this country and for the future of LGBT equality.”

    “Hello all! Gus Dexheimer here. Would you like to help me overturn Proposition 8, which is the law that keeps gay marriage illegal in California? If you or any of your friends can’t get married—which is unconstitutional—you might be interested in raising some money for the American Foundation for Equal Rights, by making a wedding pillow. I will now explain.”

    In February, I will have my Bat Mitzvah for which I am required to do a service project. When I first heard that gay marriage was illegal, I was nine. I was simply appalled. I don’t know how old I was when I learned about gay and lesbian relationships but it was never something to hide in my family. My sister is straight, I am straight, my parents are straight, but that never has and never will matter. So when my Bat Mitzvah rolled around and I had met still more gay and lesbian people, I began to think about what I could do for them.”

    (me) This is so adorable….If I had known in advance I would have designed one & donated it to this project…i hope she does another one…..Good job Gus & thank you for all you are doing for the Equality community…another young brave activist joins the growing number of youth that are forming the next generation of Equal Civil Rights Leaders…..

    There are links after the jump to where you can check out the pillows & bid on them….& info about the live auction this Sunday in Austin, Texas…….<3….Ronnie

  • 50. Richard A. Jernigan  |  January 14, 2011 at 12:34 pm

    Of course, I am probably being optimistic here, but I am beginning to wonder if maybe the DOJ is defending Section 3 of DOMA and filing appeals so that this will go to the Supremes and be overturned once and for all. And once Section 3 is overturned, hopefully that will make it easier to overturn Sections 1 and 2, bringing us closer to full equality and being more American.

    • 51. Kathleen  |  January 14, 2011 at 12:43 pm

      Section 3 is the biggie.

      Section 1 is inconsequential; it just states the short title of the Act.

      Section 2 says no state need recognize the same-sex marriage from another state. Though states might currently use it as justification for not recognizing out of state marriages, repealing it won’t necessarily mean that these states MUST recognize them. (removing permission to refuse to recognize isn’t the same as requiring recognition.)

      In the big scheme of things, getting Section 3 struck down is going to have the most wide-spread impact.

      • 52. Ed  |  January 14, 2011 at 12:59 pm

        And I think thats mostly why they removed the procreation argument, making it easier to rule against it……but I dunno….lol

      • 53. Kathleen  |  January 14, 2011 at 1:08 pm

        I think the current DOJ doesn’t consider the ‘procreating’ justification to be a rational argument. Yes, they’re trying to come up with arguments with which they can sway reasonable judges. I still don’t think the current arguments are sufficient justification, but at least they don’t swing out into the territory of whack-o insanity. We’ll be seeing requests from NOM, FRC, etc., to submit amicus briefs and I’m sure they’ll fill in the gaps. :)

  • 54. Kathleen  |  January 14, 2011 at 1:32 pm

    UPDATE: DOMA cases
    The Clerk of the Court in the 1st Circuit has determined this brief is “non-conforming” and has asked the DOJ to resubmit. This brief is no longer available on the docket. The clerk I spoke would only say it’s non-conforming, not what the issue is. It could be anything from lacking a required certification to having the wrong margins or font, though I’m having a hard time imagining what flaw wouldn’t have been noticed by DOJ attorneys.

    Peterplumber will be watching for a new submission and he or I will let you know when it’s available.

    • 55. Manilow  |  January 14, 2011 at 1:51 pm

      I’m imagining the clerk as a strong ally and just scrutinizing the “F” out of the brief… “I’m sorry, but you used a comma where you should have used a semi-colon. Re-do it all!” – I love it! (obvoiusly, my grasp of legal things is less than tenuous)

    • 56. chris from co  |  January 14, 2011 at 10:38 pm

      thank you

  • 57. Chad  |  January 15, 2011 at 2:33 am

    Sure… Those words make sense, now. But, as I remember, that wasn’t at all what DOMA was enacted for. That wasn’t what people talked about. Just because it’s a rational reason doesn’t mean that it was THE reason DOMA was enacted. And I think the record on that is quite clear. As far as a judge using this language to defend the law’s constitutionality, I think several might. It’s my only hope that it lands upon a realist judge, who knows the record, and isn’t buying this load of horse crap. It just stinks, and every soul knows it.

  • 58. Chad  |  January 15, 2011 at 2:50 am

    They should rename the DoJ to the Department of “Nice Try”.

    Or Department of “We Make Stuff Up”

    Or Department of “We Actually Thought of SOMETHING”

    They really need to stop playing Devil’s Advocate, and just admit this whole DOMA business is old-fashioned discrimination. They could say in their brief that they view DOMA as fundamentally wrong, but still defend it’s constitutionality. Sort of like, it’s not right, but it’s “legally OK”. But to adorn it with “evidence” of rationality is just insulting.

  • 59. You May Now Visit Your Partner | The Gay Estate  |  January 19, 2011 at 9:16 am

    […] Most of you probably know the story of how Janice Langehn was cruelly denied access to her dying partner while on vacation in Florida and it’s clear from her blog that she is happy and relieved that this change has been made.  But the White House’s post seems, at best, disingenuous and, at worst, deceptive (“look at the shiny object over there”).  For, as the left hand of the White House was correcting this injustice, the right hand was busy writing and filing briefs to keep DOMA in place. […]


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

Trackback this post  |  Subscribe to the comments via RSS Feed

Support the Prop 8 Trial Tracker

Connect with us

Get to know your fellow Prop 8 Trial Trackers on Facebook.

Please send tips to

Follow us on Twitter @EqualityOnTrial

Sign-up for updates on the Prop 8 trial, including breaking-news alerts.


TWITTER: Follow us @EqualityOnTrial

Share this

Bookmark and Share

SITE STATS (by Wordpress)

  • 4,585,324 views of the Tracker and counting as of today...