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Golinski District Court Judge Hears Oral Arguments

District Court Judge Jeffrey White hears oral arguments in San Francisco in the case of Golinski v. OPM, challenging the constitutionality of the Defense of Marriage Act.  In a document laying out the questions he will present to both sides at the hearing, Judge White notes that DOMA’s Section 3 “represents a stark departure from the federalist tradition and implicates a stark departure from the federalist tradition and implicates a core State power to govern domestic relations.”  He then asks why DOMA should not be considered under heightened scrutiny because of both the federalism concern and the fact that it affects marriage, a “fundamental freedom … protected by the right of privacy.”

In addition, Judge White instructs BLAG to address the argument that DOMA encourages responsible procreation and child-rearing and the claim that it “provides consistency in the definition of marriage” simply by codifying a long-standing traditional view of marriage to the exclusion of gay and lesbian couples.

Addressing the issue of the proper level of scrutiny at oral arguments, Lambda Legal’s Tara Borelli tells the court that DOMA should be considered under at least the so-called ‘rational basis with teeth review,’ saying, “Where the federal government overreaches in a way that targets a vulnerable minority group, that similarly is quite unlikely to be rectified by the ordinary political process, and that’s why it’s certainly appropriate for the Court to subject DOMA, at a minimum, to a careful and searching form of rational-basis review.”

In making its procreation argument, BLAG points out that “heterosexual couples can make babies spontaneously” and that “if we open marriage to beyond heterosexuals who have this capacity to have accidental pregnancies, we’re going to untether the connection between marriage and children.”

Attorney Rita Lin, arguing for Karen Golinski, directly rebuts BLAG’s procreation argument, saying, “[W]hat DOMA does is undermine that connection, because it takes the 270,000 children that are being raised by same-sex couples today, and it puts them outside of federally-recognized wedlock. So it disconnects marriage and child-rearing.”

Finally, Tara Borelli argues before the court that “if ever there were a picture of animus, we think that the legislative record of DOMA is it.”  As the Supreme Court has recognized, animus alone can never suffice as a legitimate governmental reason for holding a law constitutional.

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