DOJ Files Expansive Brief Supporting Lesbian’s Health Benefit Lawsuit

From Chris Geidner at MetroWeekly:

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.


Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."

Rather than relying simply on the "unconstitutional" argument, the DOJ's taking the time, energy and political risk of spelling out the States' history of homophobia, and why it's wrong, which clearly shows that Attorney General Eric Holder and company are fully prepared to go to the mat on this one.

This makes one wonder: will President Obama offer such a careful analysis when asked about DOMA on the campaign trail?


  1. Tim NC says

    Is this a different case than the one where the Obama administration was ordered to offer health benefits to the same-sex partner of an employee of a federal judge and Obama instructed his Office of Management and Budget to IGNORE the court order.

  2. ohplease says

    This is the same Obama DOJ that just last year was still comparing our marriages to incest and pedophilia?

    Maybe this clown has finally seen the light that anti-gay bigotry and lying to his LGBT base isn’t the way for a Democratic President to get re-elected.

    If so, he’s still got a VERY long way to go.

  3. Dalton says

    It’s really a shame that MetroWeekly hired Chris Geidner after his only experience was tweeting and blogging about the election.

    The lede is buried. Also, as Tim mentioned above, nowhere does he mention that the Obama admin previously fought this case and instructed OMB to ignore the court order.

    Geidner’s writing is very tedious and too much legalese. It’s painful to read and it’s obvious he’s more interested in showing off that he KNOWS the law as opposed to translating it into basic English.

    And the NLGJA awarding him an Excellence in New Reporting award shows far more about the quality of LGBT media.

  4. Phil says

    @ Ohplease,

    The “incest/underage marriage” brief that you’re referring to about was filed in June of 2009, which was 2 years ago, not last year. Of course, there was a firestorm of outrage throughout the media and the DOJ revised its brief two months later, in August of 2009, removing the “incest/underage marriage” arguments and substituting weaker arguments. I agree with you that Obama was unwise to drag out this change of course on DOMA when it would have been smarter to start the process of fighting DOMA two years ago.

    Those who support Obama uncritically insist on judging him only by what he does during a hypothetical second term. I think we’d both agree that this would be madness. (I believe the common parlance for those folks is “Obamabots choking on their Kool-Aid”, etc.) I’m not sure I would call Obama a clown just yet. The next year and a half will be the crucial period in which to determine how much brains and usefulness he has.

  5. RWG says

    This filing is significant because it goes beyond the DOJ merely declining to defend DOMA in Federal Court, it is litigation against DOMA, which is a huge change is policy.

    The change by the DOJ and the President should be acknowledged and appreciated. DOMA will be going away very soon. Before the next election, I hope.

  6. Brad says

    All I can say is wait and see. The DOJ has not been our ally before. It seems pretty flip-floppy, but then their boss, the homophobe-in-chief is pretty flip-floppy as well. Obama needs to evolve already!

  7. Randy says

    How does the Obama administration square this action with appealing (i.e. defending) the DOMA case from bankruptcy court?

    Is Obama trying to have it both ways?

  8. AdamA says

    “All I can say is wait and see. The DOJ has not been our ally before. It seems pretty flip-floppy, but then their boss, the homophobe-in-chief is pretty flip-floppy as well. Obama needs to evolve already!”

    Seriously? Homophobe-in-chief? If anything, he’s a standard politician who puts strategy ahead of clarity/honesty. What evidence is there to suggest that he is actually a homophobe, instead of a president who is reluctant to place himself at the center of the marriage debate? I’m not saying the latter is right, or that it’s gay-friendly, or that it’s fair in any way.

    But the fact is that the only reason this is moving forward is because the “homophobe-in-chief” recently ordered his administration to stop defending DOMA, a law championed (and campaigned on in ’96) by the last Dem president.

    Yes, the “evolve” thing is absolutely Obama trying to have it both ways: remaining safely in the territory of the status quo while offering his liberal base a glimmer of hope for the second term. Whether he’s sincere or not, or is legitimately teasing a second-term reversal, is really impossible for any of us to say.

    So no, I’m not willing to call this man the “homophobe-in-chief”–yet. Nor would I call him a “fierce advocate.” We can pressure him without calling him our chief enemy.

  9. BillyBoy says

    1. The admin is NOT fighting that bankruptcy case. Only the Blade reported that and the Blade got it wrong!!! That’s why we need Geidner.

    2. A history lesson. No one who can read believed that the administration compared our marriages to incest and pedophilia. That was just bull to get people shouting. Criminal activity like incest and pedophilia are in no way the same thing as age or blood-relative restrictions on who can marry. But then some people don’t want to pay attention to the difference between criminal and civil law.

  10. Tim NC says

    @Billyboy…. The DOJ certainly did compare gays to pedophiles and incest. They argued in their briefs that since states had a right to stop incestuous marriages and regulate the age of participants in marriage (to stop a pedophile from marrying an underage partner) then states also had the right to stop gays from marrying. Hence states denying incest and pedophilia in marriage is akin to denying same-sex marriage. The DOJ is saying that since same-sex marriage is similar to incestuous marriage or a pedophilia relationship, then the state should be able to regulate it in the same manner as it regulates these.

  11. Kenton says

    This is huge. Same-sex couples will enjoy full equality at the Federal level soon once DOMA falls. Other states that don’t have Constitutional amendments will follow. It will take the Supreme Court to force the remaining 41 states into recognizing same-sex marriage.

  12. Bill Perdue says

    Obama is a fraud and a bigot.

    He won election of the backs of other bigots like Warren, Daughtry, Dubois and McClurkin. He openly supports civil unions, fit only for second class citizens and same sex marriage.

    He’s pretending to be evolvy just like he pretended to be hopey/changey. Only fools – aka Democrats – believe him and that only because they project their ideas on him.

    On Tuesday, November 6th, 2012, forget the bigot. Vote socialist, vote left or just sit it out.

    Instead of worrying about which right wing candidate wins concentrate on building mass movements to win our agenda.