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DOMA lawsuit: A layman’s guide to the questions posed at today’s Golinski v. OPM district court hearing

DOMA trials Golinski

By Jacob Combs

Yesterday, I posted about today’s district court hearings in Golinski v. OPM which included a list of questions posed by the judge to both parties in the case.  Today, The Advocate’s Andrew Harmon has an overview of the hearings, along with a great layman’s translation of the court’s questions. In Harmon’s words, the questions to be addressed today include:

  • 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?

In addition, today’s arguments will address the proper level of judicial scrutiny that should be applied to DOMA, which was the first time the federal government interjected itself into what has traditionally been an exclusive state issue.


  • 1. Sagesse  |  December 16, 2011 at 2:04 pm


  • 2. Leo  |  December 16, 2011 at 2:26 pm

    I don't understand about the translation. All of these questions are verbatim from Judge White's list, except for the expansion of "BLAG" in brackets.

  • 3. Sheryl_Carver  |  December 16, 2011 at 2:41 pm

    I'm with Leo. Didn't see anything very different in the Advocate's article, either.

  • 4. jpmassar  |  December 16, 2011 at 2:59 pm

    Golinski writeup

  • 5. PhillyKarl  |  December 16, 2011 at 3:08 pm

    Does any one know when we might get transcripts? I'm very curious how BLAG responded to those pointed questions.

  • 6. jpmassar  |  December 16, 2011 at 3:18 pm

    Kathleen said she would post them when they became available.

  • 7. Thark  |  December 16, 2011 at 4:28 pm

    The only important news here, is that The DarkSide's answers to White's SIMPLE questions, if truthful..not *might* gut DOMA for good…but *WILL* gut DOMA. AND *it gets BETTER"…

    I personally can't read these gloriously antigay-crushing questions ENOUGH, (since it's these very details that the GOP contenders are SURE to be destroyed by…!

    Should be hilarious, watching the Antigays squirming and whining over the certain collapse of H8-based "laws"….

  • 8. Sarah  |  December 16, 2011 at 4:49 pm

    I imagine some people get overwhelmed trying to sort through/skip all the citations, etc. So this at least seems more approachable at a simple glance.

  • 9. Monroe94102  |  December 16, 2011 at 5:53 pm

    "Gay rights" group seeks to put the marriage rights of the gays up for a vote.
    This group not only gives credit to the NOM, but they facilitate the message that voting on the rights of the gays is okay.

  • 10. Rhonda  |  December 16, 2011 at 8:24 pm

  • 11. DaveP  |  December 16, 2011 at 10:47 pm

    I tried to leave the following comment at that article but I can't because I'm not 'facebooked'. If anyone agrees with me, feel free to copy and paste in their comments section:

    While I want marriage equality back in CA as much as anyone, putting it on the ballot is a TERRIBLE idea, even if we win! It will stop the Prop 8 trial process dead in its tracks, with no final ruling. This will leave our rights up to the whims of the majority over and over again, with every new election. The trial is going VERY well for us. LET THE COURTS RULE ONCE AND FOR ALL THAT THINGS LIKE PROP 8 ARE UNCONSTITUTIONAL.

  • 12. _BK_  |  December 16, 2011 at 11:21 pm

    No way! What the heck do they think they're doing! We have to stop this. Yes, Proposition 8 needs to be kicked out. But we have so much more to gain by letting this case take its course through the courts! Anyone have any ideas on how to stop this from reaching the ballot?

  • 13. mtswall  |  December 17, 2011 at 6:20 am

    Nonsense. This is a multi front effort. All avenues that point in the right direction should be followed. If you don't think it is a good idea, fine. Don't donate, don't volunteer. (If it hits the ballot, perhaps a vote in the right direction….). The point is that there are different folks taking different paths. That is a good thing. I agree that a win in Perry would be epic and impact beyond California. I also think a win at the polls would be huge. It would put a stop to the "let the people vote" nom-sense.

  • 14. Sheryl_Carver  |  December 17, 2011 at 6:28 am

    It would put a stop to the "let the people vote" nom-sense.

    No, it wouldn't. All it would do is re-energize the bigots.

    And, as DaveP said, it would stop the Prop 8 legal journey in its tracks, and that is NOT a good thing.

  • 15. Sheryl_Carver  |  December 17, 2011 at 6:36 am

    I used to be able to comment on the Merc site, DaveP, but they've changed their system (as you know) & I refuse to be bullied into using FaceBook. Sorry – thought I could help.

  • 16. John_B_in_DC  |  December 17, 2011 at 6:55 am

    Some coverage here:

  • 17. mtswall  |  December 17, 2011 at 6:55 am

    First of all, The ballot is next November. The appeals court finding is imminent. The court case would only stop if prop 8 is undone, which is the literal point of the case. That may not serve some larger goal, but it would win on this one. Just saying.

  • 18. Monroe94102  |  December 17, 2011 at 7:23 am

    I seriously question the motives of Eric Harrison, of Love Honor Cherish, to put the gays up for a popular vote. This act, in California, doesn't make sense. It isn't necessary now, and it puts everyone in same position of the same voters who failed the test the first time when we could get married. Marriage doesn't belong to one set of voters, so we don't need to ask them for their blessings via a vote.

  • 19. mtswall  |  December 17, 2011 at 7:37 am

    Another way of looking at it: what if prop 8 had been originally defeated? Would anyone have argued that the defeat was bad because it than couldn't be settled by a long court case?

  • 20. James Sweet  |  December 17, 2011 at 8:17 am

    OT: I'll be shocked if I'm the first to post this, but I don't see it yet:

    Unsurprisingly, gay marriage improves health. What's maybe a little surprising is the magnitude and swiftness of the effect: In the first year after Massachusettes had marriage equality, healthcare visits by gay men dropped by 13%. That's about 1 in 8!

  • 21. jpmassar  |  December 17, 2011 at 8:25 am

    And if the Supreme Court rules against us I suspect that vast numbers of people who have been shouting "LET THE COURTS RULE ONCE AND FOR ALL" wil be gnashing their teeth and questioning why, back in 2012, when we could have won at the ballot with a concerted effort, we let that opportunity pass.

  • 22. bndkllr2  |  December 17, 2011 at 8:41 am

    We should encourage the ballot initiative in Maine and other places, but NOT CALIFORNIA! We will NEVER have a better legal team or case for a Supreme Court ruling then we do with prop 8. LEAVE PROP 8 TO TED OLSON AND DAVID BOISE! I'll bet the bigots are probably hoping that we DID overturn prop 8 at the ballot box, in order to stop this unbeatable court challange, therby protecting all the other marriage bans.

  • 23. Sheryl_Carver  |  December 17, 2011 at 8:42 am

    That (original defeat of Prop 8) would not be the same. That would have meant the defeat of an unconstitutional amendment & it would have ended there. Yes, the original purpose of the trial was to get back the right to civil marriage equality in CA. However, as the case moves "up" the ladder, that right gets expanded beyond CA. Yes, there is a risk that we ultimately lose, but the potential gain, especially if SCOTUS rules as it should, is HUGE.

    On the other hand, if this initiative passes, all the work done on Prop 8 goes out the window & we are once again vulnerable to a vote in the future. I see only a big downside with very little upside.

    There's no way I will do anything to help this get on the ballot, & if it does, I'll vote against it.

  • 24. Sheryl_Carver  |  December 17, 2011 at 8:57 am

    Eagerly awaiting the transcripts! Thanks in advance, Kathleen!

    If you'd told me pre-Prop 8 that I'd ever be excited about reading ANY court documents about ANY legal action, I would have laughed so hard I've have peed my pants. Who knew how much things could change? 😉

  • 25. Monroe94102  |  December 17, 2011 at 9:00 am

    Yes, you would be correct. "…wil be gnashing their teeth…" but I don't believe this will come to pass. The harm caused by placing our vote up for a vote, again, right now, will cause more unnecessary angst, and, more importantly, the voting wars will never end. We will always be subjected to the permissions of voters. Perry v. Brown will effectively insulate us from voter referendum forever.

  • 26. Lawrence  |  December 17, 2011 at 9:53 am

    This is an excellent interview with Tony West where he clearly defines the exact point of law the Justice Department is arguing while refusing to be drawn into any other surrounding questions :)!

    I happen to believe myself that this kind of "precision" attack where the Obama administration incrementally focuses on LGBT issues it actually controls and can change IS being being a strong advocate, while simply publicly stating where he has reached on his "journey" would just inflame the considerable right wing forces against us without changing anything, and in fact is likely to prevent positive steps. I know that many others want more, much faster, and the denial of rights is intolerable every day – but I think Obama's pragmatic approach has already changed more for LGBT rights than any previous president and he is still going strong.

  • 27. Monroe94102  |  December 17, 2011 at 10:00 am

    This is the rationale (supposedly) for Love Cherish Honor to put our rights up for a popular vote. "LHC Board Chair Tom Watson emphasized the importance of fighting for equal rights in every forum and at every opportunity: "We must not sit back and accept this delay. Indeed, any willingness to wait for full equality undermines its importance. Don't we owe it to our youth to show them that we are willing to stand up for what's right and moral?"" Please forgive my cynical attitude, but I can't help seeing this a money making extravaganza at the expense of the gays and their marriage rights.

  • 28. MightyAcorn  |  December 17, 2011 at 10:15 am

    I'm glad the judge finally asked about how protections for religious belief are to be distinguished from those concerning sexual orientation. We P8TTers have been wanting to hear that question raised for YEARS….

  • 29. peterplumber  |  December 17, 2011 at 10:18 am

    We all have grown from this debacle which is Prop 8 and learned a lot from Kathleen. Thanks Kathleen!!

  • 30. peterplumber  |  December 17, 2011 at 10:28 am

    If it reaches the ballot, before a final ruling on Prop 8, then even tho we support the result of that initiative we all need to vote against it. Using the ballot box to gain (or re-gain) human rights can easily be overturned by another ballot initiative. Having the court system rule cannot be overturned by popular vote. Just look at Roe v Wade. The conservatives have tried to overturn that ruling for nearly 40 years. That is the kind of firmament we need for our marriage rights.

  • 31. peterplumber  |  December 17, 2011 at 10:36 am

    While their motive is honorable, look at what happened with Log Cabin Republicans v. United States. LCR had won in the lower courts which would have rendered DADT dead forever. But since it was repaled by congress, the court case became moot. Now DADT could easily be re-instated by a future congress which would put us back many year.

  • 32. Steven  |  December 17, 2011 at 11:25 am

    Exactly!!! With a final case final decision from 9th Circuit or USSC to restore marriage equality in CA means anti-marriage opponents CAN'T put it back on the ballot to let voters to vote on my civil rights. I believe LHC's effort to collect signatures and try to put back the ballot may backfire on us, them or both. There is a reason that EQCA decided to not go forward for 2012. They took their time, talked to the LGBT community in some ways, research, and etc. However, LHC decided do it within a week without talking lgbt community at large. LGBT community is not all about LA, West Hollywood, San Diego, San Francisco… I live in Inland Empire and we have a good size of LGBT community.

  • 33. Leo  |  December 17, 2011 at 12:06 pm

    I remember it being raised before. (I thought it was in Lawrence v. Texas, but just checked the transcript and couldn't find it.) The response was that protections for religious belief derive from the First Amendment and not the Fourteenth.

  • 34. _BK_  |  December 17, 2011 at 12:33 pm

    I really do wonder if a defeat at the ballot box for the initiative will allow the bigots to point to that fact and say, "Hey! Look at that! Californians have lessened in their support for same sex marriage!"

    I really hope it doesn't get on the ballot, for I'd certainly vote against my own rights in that scenario. The costs would not be worth the potential benefit.

  • 35. JonT  |  December 17, 2011 at 1:24 pm

    That's funny Monroe – that's exactly what I thought: "Hey, this guy wants a job and a spotlight!".

    Personally I think it's a bad idea at this time.

  • 36. Drpatrick1  |  December 17, 2011 at 2:00 pm

    Leo, u are exactly right. The right(read as wrong!) love this argument as it is a rare winning one from their side. The constitution clearly cuts out an exception for religion in the first amendment. Therefore, they argue, we have precedent in the constitution that the framers wanted ALL exceptions clearly outlined in the constitution or else they don't exist. Why else would they list religion so clearly and separately? However even some conservatives argue that the 14th amendment is meant to be a broad declaration that the constitution should live up to the declaration of independence, that ALL men (read generically as men and women) are created equal and should be equal under the law.
    I love that the other side has to twist and turn to try to argue that in America there is no right to equality. That is the reason we will win this, we are so clearly right!

  • 37. Drpatrick1  |  December 17, 2011 at 2:16 pm

    We all want a defeat for prop 8, and a defeat at the ballot box would be sweet, but it is too late for that. We have, as others have stated, the best legal team imaginable, the clearest legal example of the type of discrimination that the 14th amendment was designed to eliminate. If we lose this case, we can go back to the ballot box. But we won't and a court win is soooooooo much more powerful than one at the ballot box. I too was initially disappointed by not going for in 2012, but I was wrong. We are right to wait. We cannot risk the war by diverting our troops for a single battle.

    On the other hand, if this makes it to the voters, and it won't, but if it does, then we have no choice but to support it. It could really hurt us badly if we lose in CA again. We can't vote against ourselves. That would give too much false but powerful ammunition to the bigots fighting against equality.

  • 38. MightyAcorn  |  December 18, 2011 at 8:32 am

    The appeals court case isn't a final ruling–it's not final until SCOTUS rules or denies cert. That is NOT imminent. A BALLOT INITIATIVE COULD MOOT WALKER'S DECISION. I was very supportive of LoveHonorCherish back when they started before the court case got rolling, when they were still grassroots. Now I also question their motives, and it seems a bit strange to me that they're willing to put a powerful Federal court ruling at risk. Would it be completely black- helicopter-headed to wonder if this group could have been coopted by unsympathetics?

  • 39. grod  |  December 18, 2011 at 2:33 pm

    @ mtswall: Pt 1 Being on the same page: – I’m surprised by your introductory word: “Nonsense”. If you were trying to catch my eye? You did! Were you addressing compatriots or opponents [i.e. internal or external]? While a consensus has held that the California and Federal Court process is the most effective route to civil marriage equality, perhaps that consensus cannot hold. But before you support a new direction/action, might you not suggest that the current consensus be revisited, affirmed, renewed or reshaped. In my view, what is fundamental is the LGBT community be on the same page what ever the strategy. It also helps in working with straight allies if the LGBT community is on the same page.

  • 40. grod  |  December 18, 2011 at 2:34 pm

    @mtswall Pt 2 Is there a doubt that current consensus has been successful? It does make sense in the context of building case law ( i.e. Goodridge MA, Kerrigan CT, Varnum IA and Perry CA), compared to the success of related ballot initiatives: 0/30. Mtswall, have you read an analysis of the Maine vote. 66% of 7.5 million spent was on the equality side. That is three times as much as was spent per capita by the No campaign in California. Results: “The [2009] gay‐marriage campaign has been sucking up resources like a massive sponge… leaving little sustenance for other queer groups doing critical work in our communities.” A ballot initiative will most certainly moot a case before the courts, including all precedents. If you doubt it as the LOG Republicans re DADT.

  • 41. grod  |  December 18, 2011 at 2:37 pm

    @mstswall pt 3 In Canada, where in 2005 a ballot initiative would have been improbable because the definition of marriage is in the federal domain, and because of the potential divisiveness between provinces, regional and cultural groups; court decision upon court decision reinforced one another in 10 of the 13 jurisdictions – all achieved over three years.

    I believe the human and financial resources of the LGBT community are comparatively limited. These need to be prudently deployed. Have you forgotten the resources used to the community to just be on the verge of Reinhardt, Hawkins and Smith’s decision. There is the possibility of an en blanc hearing and the probability of a request for a hearing before the US Supremes. Doing both well, will take resources. And in the intervening periods, the likelihood of a continued stay of Walker’s ruling is high. Keeping people's expectations hopeful but restrained will also consumes resources. Resources are needed next door, not just in California.

  • 42. grod  |  December 18, 2011 at 2:40 pm

    @mtswall pt 4
    In 2011, Maine’s Equality Community has achieved a consensus on a different strategy than California, and now has exceeded the minimum number of signatures well ahead of time. They are in train for a second ballot initiative next November. Perhaps that is part of the multifront effort that you were referring to.
    What has been observed thought all these initiatives is that test the assertions of the opposition is considerably easier in a court of law than in a court of public and voter opinion. Did you read Theresa’s Stewarts et al’s recent brief that challenges the proponents of Prop 8 to represent the known position of the state rather than their own. Logical and brilliant. And testing the proponent’s assertions in a court of law can lead to decisions that have wider implications than a decision effecting just that state.
    In base, I not convinced that you are right that it’s a good thing that 'different folks take different paths.' I remain to be convinced at any ‘win at the polls’ will have a huge impact. Not even by a wide margin. We agree that a win in Perry would be epic and impact beyond California.

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