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House Democratic Leader Nancy Pelosi files amicus brief attacking DOMA in 9th Circuit case Golinski v. OPM

DOMA trials Golinski

By Scottie Thomaston

This morning, House Democratic Leader Nancy Pelosi, along with Congressman Jerrold Nadler (D-NY) and 130 House members filed an amicus curiae (“friend of the court”) brief in Golinski v. Office of Personnel Management in the Ninth Circuit Court of Appeals. The case is currently scheduled for oral argument on September 10 at the Ninth Circuit. And last week the Justice Department filed a petition for a writ of certiorari to the Supreme Court in the case. Since the Justices’ summer vacation doesn’t end until after oral argument in the case, it will proceed, as they will not have an opportunity to decide on whether or not to take the case until late September or early October.

The Bipartisan Legal Advisory Group (BLAG) is defending the law on behalf of the House, but no Democrats voted to allow BLAG to defend the case.

According to the summary of the brief, the main argument House Democrats make is that DOMA was passed quickly and without much discussion. The conclusion that can be drawn from that according to the brief is that it was passed simply to disparage gays and lesbians. House Democrats also suggest that heightened scrutiny applies to cases affecting gays and lesbians:

Heightened scrutiny applies: the brief agrees with Justice Department’s position that lesbians and gay men are an identifiable minority group that lack sufficient political power to obtain the consistent and favorable treatment of lawmakers; as a result, they need the protection that heightened judicial review provides.

  • Congress’s treatment of gay men and lesbians illustrates that this group has been unable to prevent harmful laws or achieve desired policy results that directly impact their lives.
  • Gay men and lesbians are a historically disfavored minority that has often been targeted for legislative action based on stereotypes and bias, making it inappropriate for courts to grant laws like DOMA the same presumption of validity afforded to most acts of Congress. Instead, laws that single out gay men and lesbians for harm warrant judicial skepticism and heightened review. This requires the government to show that Section 3 serves a significant federal interest, and even BLAG seems to concede that it loses under this standard.

The brief suggests that were judges disinclined to apply heightened scrutiny, the law would not survive under rational basis scrutiny, and “[n]one of the reasons provided by Congress in 1996 or created in response to litigation rationally serve a legitimate federal interest”. House Democrats also write that DOMA undercuts state sovereignty:

Section 3 does not protect, but undercuts, state sovereignty. Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.

The list of signatories is here and the brief is here.


  • 1. Sagesse  |  July 10, 2012 at 11:12 am


  • 2. Gregory in SLC  |  July 10, 2012 at 11:32 am

    DIE DOMA DIE! VERY curious WHEN DOMA falls, how will my married in Utah will be affected? File as a couple for Federal taxes, then as individual for state?

    VERY glad that DOMA is being attacked from many angles. Thank you Nancy Pelosi et all!

  • 3. Bob  |  July 10, 2012 at 11:33 am

    DOMA undercuts state sovereignty!!!!!!!!!!

  • 4. Gregory in SLC  |  July 10, 2012 at 11:43 am

    YES! that is the best argument!

    Section 3 does not protect, but undercuts, state sovereignty. Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.

  • 5. Scott Wooledge  |  July 10, 2012 at 11:47 am

    "File as a couple for Federal taxes, then as individual for state?"

    That is the most likely outcome of Sec. 3 alone being struck down as unconstitutional.

    The caveat being, we haven't read the Supreme Court's decision, so who knows what they'll say?

    The Justices have the power to do more, but the plaintiffs in the cases aren't even asking for that, so it would be odd for them to do so.

  • 6. Scott Wooledge  |  July 10, 2012 at 11:49 am

    This is great. It really undermines the BLAG's contention that the court owes deference to Congress. Now it's made really clear to the court that even Congress isn't of one voice on DOMA, despite being a titular defendant in the case.

  • 7. Scottie Thomaston  |  July 10, 2012 at 11:52 am

    It's AWESOME. I'm so glad they did this. It's so great to have congresspeople admit that they rushed through passage of a bigoted federal law.

  • 8. B&E  |  July 10, 2012 at 11:58 am

    Thank you sane members of Congress! Now, if the rest of you would just step aside while we elect more intelligent members who work for the people instead of against them.

  • 9. Straight Ally #3008  |  July 10, 2012 at 2:38 pm

    DOMA is the Black Knight of legislation. How many more limbs need to be lopped off?

  • 10. Jamie  |  July 10, 2012 at 2:59 pm

    It's not only odd, but completely without precedent. Courts do not decide matters that are not presented to them.

  • 11. Scott Wooledge  |  July 10, 2012 at 3:46 pm

    Well, they're not supposed to anyway. It does happen. But not usually in favor of the little guy.

  • 12. Scott Wooledge  |  July 10, 2012 at 3:47 pm

    Tis nothing but a flesh wound.

  • 13. MightyAcorn  |  July 10, 2012 at 3:49 pm

    I suggest administering the Holy Hand Grenade of Antioch, just to make sure.

  • 14. Straight Dave  |  July 10, 2012 at 5:51 pm

    Any idea how many of the signers of this brief voted to approve DOMA in 1996? I'd have to hope that the "coming to our senses" factor would carry some weight with the court – maybe not legally, but surely psychologically.

  • 15. Matt N  |  July 10, 2012 at 5:55 pm

    The easy ruling for SCOTUS is "Congress has no power to impose a uniform definition of marriage". End. They don't have to rule on gay issues, scrutiny, Congress' intent, etc., etc. I bet at least 7 of them can agree on that.

  • 16. Straight Dave  |  July 10, 2012 at 6:01 pm

    Never mind. I found the voting list. I'll have it summarized shortly.

  • 17. Scott Wooledge  |  July 10, 2012 at 6:28 pm

    Thsnks, it's a good question, I'd like to know how many original voters for the bill on on that list. I'm sure at least some, although turnover at the House is higher than the Senate.

  • 18. Straight Dave  |  July 10, 2012 at 7:18 pm

    This may not be perfect due to name ambiguities, but it's pretty darn close. I count 20 House Members who signed the amicus brief and voted YEA on DOMA in 1996.
    Roll call vote came from

    James E. Clyburn
    Steny H. Hoyer

  • 19. Straight Dave  |  July 10, 2012 at 7:50 pm

    Since House turnover is so high after 16 years, the number 20 doesn't have much significance or context. A much better measure is this:

    Zero Repubs signed the amici brief and only 1 voted against DOMA (after he was outed on the House floor!). So they just don't factor in at all.
    1996: 60% of Dems voted for DOMA (118 of 198)
    2012: 68% of Dems signed the brief against DOMA (132 of 193)

    ….coming to our senses

  • 20. Jim  |  July 10, 2012 at 8:21 pm

    Nancy Pelosi rocks!

  • 21. AnonyGrl  |  July 11, 2012 at 7:38 am

    One, two, four. THREE!

  • 22. AnonyGrl  |  July 11, 2012 at 7:40 am

    That does sound about right.

  • 23. John  |  July 11, 2012 at 8:52 am

    Karen Bass was not in Congress in 1996.

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