House Minority Leader Nancy Pelosi (Blade photo by Michael Key)
A group of 132 House Democrats — led by House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) — filed on Tuesday a friend-of-the-court brief against the Defense of Marriage Act to assist litigation challenging the anti-gay law.
The brief was filed before the U.S. Ninth Circuit Court of Appeals in the case of Golinski v. U.S. Office of Personnel Management. Lambda Legal and Morrison & Foerster filed the suit on behalf of Karen Golinski, a court employee at the U.S. Ninth Circuit of Court of Appeals who’s seeking partner benefits for her spouse, but was denied them because of DOMA.
In addition to Pelosi and Nadler, Democrats who signed the amicus brief against DOMA include all members of Democratic leadership — including House Democratic Whip Steny Hoyer (D-Md.) and Assistant Minority Leader Jim Clyburn (D-S.C.) — as well as Rep. John Conyers (D-Mich), ranking member of the House Judiciary Committee, and all four openly gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).
The Obama administration stopped defending DOMA in court in February 2011. The Bipartisan Legal Advisory Group, or BLAG, a House body convened by Speaker John Boehner (R-Ohio), has since taken up defense of the anti-gay law in the administration’s stead.
The 30-page brief makes the case against Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, in several ways, emphasizing that BLAG doesn’t speak for the entirety of the U.S. House. House Democrats have pledged to file a brief in each case where BLAG acts to defend DOMA.
First, the lawmakers argue DOMA warrants heightened scrutiny because Congress has a history of targeting gay and lesbian Americans with discriminatory laws — a position that is held by the Obama administration.
House Democrats then argue that DOMA is unconstitutional because Congress hastily passed it in 1996 for political reasons and because the law undercuts Congress’ interest in protecting families and respecting state sovereignty.
“Congress did not proceed “cautiously” as BLAG now suggests, … but acted hastily, and in a manner that reflects the reality that, as a historically disfavored minority, gay men and lesbians have often been targeted for harm based on stereotypes, bias, and the unfortunate desire to create partisan wedge issues for political gain,” the brief states.
Shelbi Day, a staff attorney for Lambda Legal, said the brief filed by House Democrats “sends a powerful message” and would boost arguments that DOMA is unconstitutional.
“The brief filed by Democratic leadership of the U.S. House of Representatives, joined by 130 other House Members sends a powerful message and underscores just how problematic and unconstitutional DOMA is,” Day said. “As the brief points out, DOMA is not the rational result of impartial lawmaking but rather was enacted in haste with no legitimate government purpose. We welcome this brief and applaud the members of Congress who have signed it.”
It’s not the first time that House Democrats have filed a friend-of-the-court brief asserting DOMA is unconstitutional. In November, House Democrats filed a similar brief before the U.S. First Circuit Court of Appeals in the consolidated case of Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.
The appeals court has since issued a decision that the anti-gay law is unconstitutional. Late last month, Boehner appealed the First Circuit decision finding DOMA unconstitutional to the Supreme Court.
The names on this brief are almost identical to the previous brief, although there are some differences. Former Rep. Jay Islee signed the first brief but not the second because he’s since retired from Congress to run for governor of Washington State. Former Rep. Donald Payne of New Jersey signed the first brief, but died on March 6 as he was battling colon cancer.
But a new name on the brief is Rep. Suzanne Bonamici (D-Ore.). The lawmaker, a co-sponsor of the Respect for Marriage Act, wasn’t yet elected to office at the time the first brief was filed. Bonamici won a special election on Jan. 31.
Other parties have filed friend-of-the-court briefs in support of the anti-gay law. Among them is one filed by Senate Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.), Republican attorneys general from 14 states; and another from Republican former U.S. attorneys general Edwin Messe and John Ashcroft.
Oral arguments in the Golinski case are set before the Ninth Circuit for the week of Sept. 10. The Justice Department has asked the Supreme Court to consider the case along with Massachusetts v. HHS, but oral arguments will take place regardless before the Ninth Circuit in September because justices won’t be able to decide whether to hear the case until they return from summer recess in October.
NOTE: The last paragraph of this article has been edited for clarity.