Challenge To DOMA In San Francisco

TonyWestYesterday, a top lawyer with the Department of Justice appeared in San Francisco to argue against the constitutionality of DOMA.

He appeared on behalf of Karen Golinski, the federal employee whose routine request to add her wife to her health insurance policy has resulted in a clash between the retained homophobes of the legislative branch and the Obama administration's DOJ, which asserts that DOMA's odious, marriage-defining third section is unconstitutional and shouldn't be enforced. From the Metro Weekly:

Pitting the House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG) against Golinski and the Obama administration, [yesteday's] hearing presented the question to U.S. District Court Judge Jeffrey S. White whether Golinski's challenge should be dismissed and, if not, whether she should be granted a decision in her favor without a trial.

Assistant Attorney General Tony West, the head of the civil division of DOJ, appeared in court to argue DOJ's position. Lambda Legal's Tara Borelli and Morrison & Foerster's Rita Lin represented Golinski. For BLAG, former George W. Bush administration Solicitor General Paul Clement did not attend the hearing but rather sent Bancroft PLLC's Conor Dugan, another lawyer who had served in the George W. Bush administration DOJ, to handle the arguments.

Speaking to Metro Weekly after the hearing, Borelli said, "Judge White thanked the DOJ for having sent the head of the civil division" to argue the case himself, adding that it made "a statement of the significance that DOJ and the administration place on this question."

During the hearing, Judge White seemed "skeptical" of BLAG's arguments, Metro Weekly reports:

In White's questions, he not only appeared skeptical of BLAG's arguments but also appeared at least curious about BLAG's view of its constitutional basis to be there at all. In one question, he asked, "What is the statutory authority for and evidence of compliance with the role that the Bipartisan Legal Advisory Group has assumed in this matter? Is this group actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?"

White went on to cite an earlier Supreme Court case about congressional representation in the courts, INS v. Chadha, in which he wrote that the court held that "Congress is the proper party to defend the validity of a statute when an agency of government charged with enforcing the statute agrees that the statute is unconstitutional."

The Golinski case represents the first time BLAG's lawyers have argued for the constitutionality of DOMA in the open air of a courtroom, with all the scrutiny that implies.


  1. Michael Bedwell says

    One-handed applause. Don’t start building any statues—this is the SAME guy who used to insist it WAS constitutional and fought to have Golinski’s case dismissed. And he successfully fought to have the ruling that DADT was unconstitutional overturned [thus EMPOWERING any future President/Congress to bring some version of it back], AND lied about why lesbian Air Force Major Margie Witt had been discharged.

  2. Christopher Daley says

    @Michael Bedwell, really? This is what happens after West and the DOJ have had time to unwind the insanity created by 8 years of the Bush Administration. All you can offer is a half-hearted thanks followed by doubling down on your earlier uninformed attacks? That’s just sad.

    The executive branch of our federal government just argued, on our behalf, that a federal law is unconstitutional. This is what happens when we win elections. Huge congrats to the DOJ and WH for taking this on.

    Also, everyone should keep an eye on Tara Borelli from Lambda. She is a solid gold superstar. We’re incredibly lucky to have her on our side.

  3. Artie says

    @ Michael Bedwell,

    Hillary is not going to run in the 2012 primary. PUMA is dead, OK? That leaves you with Mittens Romney, which is a very hard sell, considering he wants to defend DOMA to the death. But go ahead and use the following Harriet Christian clip if you really want to. Just edit Harriet’s last line: “Well, I got news for all of you. Romney will be to be the next president of the United States.” (Harriet Christian’s prediction was wrong the first time too.)

  4. Artie says

    Also, Bedwell,

    Please explaining your statement: “this is the SAME guy who used to insist it WAS constitutional and fought to have Golinski’s case dismissed.”

    The recent Metro Weekly article from December 16th claims otherwise:

    “According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, ‘was for a national security case.'”

    The only thing you can be sure of is which DOJ lawyer is presenting the brief in court. You know that Tony West never appeared in court in support of DOMA because that’s part of public record. You’re assuming that because Tony West’s name appears on the 2009 or 2010 brief, that means that he helped to prepare the brief. So where’s your proof that Tony West even helped prepare the the 2009-2010 briefs in defense of DOMA?

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