U.S. Department of Justice: "Defendants' Brief in Opposition to Motion to Dismiss", July 1, 2011
"Acknowledging the Past," a news analysis by Chris Geidner in MetroWeekly, the LGBT news magazine published in Washington, D.C. on July 5, 2011, reported the "historic" United States Department of Justice's (DOJ's) admission of the regrettable role of the federal government in anti-gay discrimination, and its criticism of state and local discrimination.
The admission of anti-gay discrimination appeared in the "Defendants' Brief in Opposition to Motion to Dismiss" in Karen Golinski's lawsuit in the federal courts seeking equal benefits at work so that she can insure her wife. The DOJ's filing was issued July 1.
The DOJ's brief opposed the House Republicans, who filed a brief in June seeking to have Golinski's case dismissed.
In its filing, the Justice Department acknowledged, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals."
The DOJ then includes two pages detailing the specifics of that discrimination, including efforts by the State Department, FBI and U.S. Postal Service to seek out or track those who were thought to be gay.
That admission of discrimination is an essential part of lawyers' arguments before courts when they argue why heightened scrutiny should be applied (under the 14th Amendment's Equal Protection Clause) to laws that classify people based on sexual orientation.
The Department of Justice's admission of government discrimination is significant because lawyers can now argue in court that the federal government admits that it has discriminated against lesbians and gay men.
The DOJ filing also takes a strong stand against state and local discrimination, citing more than 20 different instances of state or local discriminatory practices.
It cites laws and judicial opinions making adoption and teaching more difficult or impossible for gay and lesbian people, to police raids of gay bars, including notations of raids over the past years in Atlanta and Fort Worth, Texas.
The DOJ's new brief went much further than Attorney General Eric Holder did in the letter he sent to House Speaker John Boehner (R-Ohio) on February 23, 2011. That detailed his and President Barack Obama's decision that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that they would no longer defend it in court.
The DOJ, by filing its brief after the White House LGBT Pride Reception and other pride month events, stressed the legal character of its argument, rather than its character as a political statement.
The brief, filed in the Northern District of California, is perhaps the most important legal argument ever made by the United States government in support of equality for lesbian, gay and bisexual people.
Although the case did not include transgender issues, the government has previously argued that the the same legal standard should apply to gender identity classifications, so it should prove helpful in court cases looking at gender identity-based discrimination.
The DOG brief cites Romer v. Evans, the Supreme Court case striking down Colorado's anti-gay constitutional amendment as based simply on "animus", or irrational prejudice.
The Justice Department then highlights the fact that earlier in 2011 "the Tennessee [L]egislature enacted a law stripping counties and municipalities of their ability to pass local non-discrimination ordinances that would prohibit discrimination on the basis of sexual orientation, and repealing the ordinances that had recently been passed by Nashville and other localities."
The Department of Justice describe the Tennessee law as an example of continued state discrimination immediately after its mention of the Supreme Court's Romer decision invalidating Colorado's anti-gay amendment, suggesting, indirectly that the Tennessee law is similarly based on "animus."
The DOJ's references to discrimination by states also provides several specific examples of the limits to state decision-making on issues involving prejudice.
Establishing a history of discrimination is one part of the test courts use for deciding whether heightened scrutiny applies.
The Justice Department brief also addresses other tests used by the courts to decide if heightened scrutiny applies to a particular group.
Referring to political powerlessness, for example, the Justice Department details the strong backlash in the 1970s, 1980s, and 1990s to … civil rights ordinances" aimed at protecting LGBT people and similar political backlashes against same-sex marriage in the past decade.
The Department of Justice filing put the authority of the federal government behind the arguments advanced for decades by Lambda Legal, Gay & Lesbian Advocates & Defenders, National Center for Lesbian Rights and others.
