Friday, December 16, 2011

Hearing today on DOMA

Today, there will be oral arguments on one of the many DOMA cases working their way through the federal courts: the Golinski case, in which a legally married California woman, Karen Golinski, was denied health coverage for her spouse. (The kicker here is that she works for the federal courts). Frankly, I would much rather see this go to the Supremes than Prop8, right now--I don't trust the Supremes on Prop8, but the DOMA clause 3  issue is a slam dunk failure of equal protection big enough for Antonin Scalia to see.  Legally married couples are treated differently by the federal government for no reason but their gender.

This case is a big deal,because the Department of Justice will actually be arguing against DOMA, which will be defended by the expensive lawyer bought by the Republicans in Congress (called BLAG). From The Advocate:
Tony West, assistant attorney general of the Justice Department’s civil division, told The Advocate that his Friday arguments in federal district court will center on why Section 3 of DOMA, which bars federal recognition of same-sex marriages, should be subject to heightened judicial scrutiny — in part given the long history of discrimination against gays and lesbians in the United States.

“This issue is really about whether the federal government, in distributing health insurance benefits, can pick and choose on the basis of sexual orientation when deciding whom to confer benefits,” West said. “Here is a married couple who, for all intents and purposes, is the same as anyone else, with one distinguishing characteristic, and that is sexual orientation.”
The Advocate also tells us about some of the specific questions the judge hearing the case has put forth for the attorneys:
Earlier this week, U.S. district judge Jeffrey S. White issued a two-page list of questions to attorneys on DOMA’s constitutionality and whether the law should be subjected to heightened scrutiny. Among them to be addressed Friday in court: 
  • How does treating some state sanctioned marriages different from others promote consistency or maintain the status quo? 
  • How does the withholding of federal benefits to children of families with same-sex parents encourage responsible parenting and child-rearing?
  • Is the [Bipartisan Legal Advisory 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?
  • How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?

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