DOJ sends top attorney to DOMA challenge

The Department of Justice sent one of its top civil rights attorneys, Tony West, to argue against the Defense of Marriage Act in a federal district court in San Francisco Friday.

The presence of West, assistant attorney general for the DOJ’s Civil Division, represented both political and ironic aspects of the case, Golinski versus Office of Personnel Management.

It was West, head of the DOJ’s Civil Rights Division, who filed a brief less than a year ago that a federal court should uphold DOMA in order to avoid “administrative difficulties.”

But West argued Friday that federal district court Judge Jeffrey White should ignore the law banning federal recognition of same-sex marriages and grant federal employee Karen Golinski health coverage for her same-sex spouse.

Golinski is an attorney with the 9th Circuit U.S. Court of Appeals and one of the ironies of the case is that it was the federal Office of Personnel Management that instructed the court to reject Golinski’s request. OPM is headed up by the highest openly gay appointee in the Obama administration, John Berry.

Lambda Legal attorney Tara Borelli, who is heading up Golinski’s challenge, said Judge White thanked the DOJ in court for sending West to convey its arguments against DOMA in the two-hour proceeding.

Borelli said Judge White also seemed to chastise the attorney representing the U.S. House Republican leadership, Conor Dugan, for having submitted a law review article into evidence that discussed such stereotypes as gay male promiscuity.

Full story to come when transcript is made available.

3 Responses to DOJ sends top attorney to DOMA challenge

  1. StraightGrandmother says:

    Many thanks for this information. We are all waiting on pins and needles to find out what went on in court today. Please write a LOT. Set the stage for us and tell us the story. Since BLAG objected to the hearing being videotaped we are very dependent on you to tell us what happened. Reading a transcript of the hearing does not impart the tone like a first person account does. Waiting anxiously for more information.

  2. Janice says:

    We too are waiting anxiously for more information. As each day passes it feels as though we are closer to our goal of being treated equally as U.S. citizens as our heterosexual fellow citizens are.
    I hope and pray for good news here, especially for Karen and Amy. They have fought a long hard fight, and deserve to win!
    Thank you ladies!

  3. Arouete says:

    Thank you for pointing out that, in June of 2009, Obama’s Department of Justice infamously filed a brief defending the Defense of Marriage Act. “Top attorney” balderdash. Tony West the Assistant Attorney General whose name was on that brief is an Obama appointee and the brother-in-law of then San Francisco District Attorney Kamala Harris who is now the attorney General of California. Political patronage?

    In response to that brief that bears West’s name, activist David Mixner wrote,

    “The brief in defense of DOMA filed by President Obama’s Department of Justice could have been written by the Rev. Pat Robertson. Using the worst of stereotypes, it intimates that we don’t have constitutional guarantees, invokes scenarios of incest, of children and advocates that we don’t have the same rights as others who have struggled for civil rights…. Anyway you cut it, it is a sickening document – one that this administration should be ashamed of and should disgust any friend of this community. …”

    I guess West was hoping we’d all forget since that capitulation might blight his political agenda and hamper his career?

    KQED’s Cy Musiker recently asked West, “Now a year ago, less than a year ago, you filed a brief with the court arguing that the court should uphold DOMA. Why the change??

    West: “Well, that’s right. Up until about a year ago the Department was defending DOMA. We were faced with an interesting situation, which gave us the opportunity to reassess our legal position. … (in that circuit there was) no existing precedent or existing court authority on this question of what the appropriate legal tests the court ought to use when it’s evaluating a classification like sexual orientation. And because … in this circuit, in this court [that was an open question, we took the opportunity to really evaluate .. the right legal answer is to that question. We concluded that the right answer is that sexual orientation is a classification that ought to be subject to a more strict, more rigorous legal test and when you apply that test to DOMA, it fails.”


    …West’s new argument seems a bit self-serving – but we should take our victories as we find them….

    All this seems yet more evidence of deliberately delaying a SCOUTS showdown until Obama hopefully gets a second term and can make one more appointment that will tip the balance. However, since even Scalia has already admitted that Lawrence can not be squared with a denial of marriage equality then stare decisis mandates it’s pretty much a forgone conclusion – even with this court.

    But West does not address the obvious criticisms of his prior position because he does not explain why the ‘fundamental’ rights analysis would not have been sufficient in that circuit even absent the classification issue. No need for a suspect class when you already have strict scrutiny in any event.

    What this does seem to admit is a calculated, cynical, strategy to blow one case because it did not present the opportunity to fix ‘suspect classification’ to this class. This serves whom? If the rational basis argument would have sufficed would that not have been sufficient? And since ‘strict scrutiny’ analysis would apply to a fundamental right anyway the need for a suspect class is obviated. West’s argument seems both disingenuous and self-serving. What a pity the ‘journalists’ let him get away with what should not get past an L2.

    We are not here to serve the lawyers – they are here to serve us and if that case could have been won on rational basis or ‘fundamental’ right strict scrutiny analysis it should have proceed. The spin that he felt we should await precedent as a suspect class seems silly since the very test he claims we needed was already present by virtue of a fundamental right being at issue.

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