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GOP Senators file a brief in a DOMA case, in favor of the law

DOMA trials Golinski

By Scottie Thomaston

In Golinski v. OPM, District Court Judge Jeffrey White struck down the Defense of Marriage Act as unconstitutional. The case is currently on appeal to the Ninth Circuit Court of Appeals. In Judge White’s ruling, he said that the legislative history of DOMA is “replete with expressed animus” toward people who are gay and lesbian. This is important, since several Supreme Court cases have held that animus is not a rational basis for a law.

Ten United States Senators are unhappy with this part of the ruling, even though the opinion cites actual examples of statements from the record. They’ve filed an amicus brief in the Ninth Circuit taking issue with any suggestion that anti-gay animus or bias played a role in passage of the law:

With the Justice Department declining to defend the law, the GOP-controlled House has stepped in to appeal, filing a nuts-and-bolts-type brief earlier this month. But on Monday the 10 GOP senators filed an amicus with a bit more ad hominem flavor.

Nothing in Supreme Court jurisprudence, the senators contend, “authorizes a court to strike down an otherwise constitutional law based on the belief that legislators individually, or the Congress as a whole, were motivated by ‘animus,'” states the brief, which is signed by Michael Stern of Fairfax, Va.

“Judicial ‘psychoanalysis’ of legislative motives, to use Justice Cardozo’s phrase, is a highly subjective exercise, which threatens needless friction between the branches,” the brief continues. “Scouring the congressional record for ‘sound-bites’ to divine and disparage the motives of individual legislators also chills the freedom of legislative speech that is the hallmark of robust democratic debate.”

In a footnote, the senators added that they didn’t appreciate White’s comparison of the arguments for DOMA with historical arguments against interracial marriage, either.

The senators who signed on to the brief were Orrin Hatch, along with “Saxby Chambliss of Georgia, Dan Coats of Indiana, Thad Cochran and Roger Wicker of Mississippi, Mike Crapo of Idaho, Charles Grassley of Iowa, Lindsey Graham of South Carolina, Mitch McConnell of Kentucky and Richard Shelby of Alabama.”

Golinski v. OPM will be argued the week of September 10-14.


  • 1. Sagesse  |  June 13, 2012 at 3:14 pm


  • 2. David Henderson  |  June 13, 2012 at 3:24 pm

    As Professor Lynn D. Wardle of Brigham Young University, an expert in family law, testified: “[T]his is the kind of issue that is best resolved before the cases arise. Waiting until after some state legalizes same-sex marriage and a flood of cases are filed demanding that same-sex unions formed in such as state be treated as ‘marriages’ for purposes of federal laws would be very unwise. It would invite a multitude of unnecessary litigation, and create confusion, inconsistency, and unfairness. Different courts in different districts and circuits might reach contradictory conclusions adding to the uncertainty.”

    Footnote 6, page 5 (PDF page 11). What's interesting about this quote is that different courts in different districts and circuits have been pretty much consistent in their conclusions, removing any uncertainty.

    Section 3 eliminates what could be a lot of very messy and costly litigation for the federal government.

    Page 6 (PDF page 12). Again, there's been a lot of very messy and costly litigation for the federal government because of Section 3.

  • 3. Steve  |  June 14, 2012 at 7:00 am

    Brigham Young University…..that alone disqualifies her. Especially when it comes to things like family law

  • 4. fiona64  |  June 14, 2012 at 11:01 am

    Not surprising that's who they cite: IIRC, every one of these 10 are members of Utah's Locally Dominant Sect. (Disclaimer: I could be misremembering.)

  • 5. Steve  |  June 14, 2012 at 11:33 am

    I wouldn't necessarily say the same about a BYU graduate working elsewhere (though I would have suspicions) or about Mormons in general (depending on how big of a deal they make about it), but anyone who is a professor at BYU would give up their academic freedom. Doing research and having opinions that contradict Mormon doctrine or university policy can have severe consequences there.

  • 6. mtnbill  |  June 14, 2012 at 9:51 am

    I've sometimes wondered why the Prop 8 folks could not get someone from BYU to testify on their side of the case–I guess even BYU professors know that the often cited parenting studies (by NOM et al.) can not be defended.

    The Prop 8 folks really put on a poor case. Which may be why the cases now all revolve around legal theories. (Parenthetical thought: but appeals cases may not be about the facts, anyway.)

  • 7. Jamie  |  June 13, 2012 at 3:31 pm

    I'm sure it's on the record how these ten senators were horrified and publicly objected to the comments made on the Senate floor against gay and lesbian Americans. Wait, there isn't any objection in the record? I'm shocked.

  • 8. Kathleen  |  June 13, 2012 at 3:33 pm

    For anyone who didn't see them, this is just one of several amicus briefs filed Monday in Golinski in support of DOMA. The others are posted in this quick hit:

  • 9. Gregory in SLC  |  June 13, 2012 at 9:22 pm

    thx for posting all of these Kathleen as they came avail!

    Eagle Forum is the rabid group in Utah who sit on capital hill… and the "concerned mom's of America"…ironic name–they should be concerned about the dead LGBTQ kids due to ignorance and lack of tolerance.

  • 10. Carpool Cookie  |  June 13, 2012 at 3:49 pm

    "In a footnote, the senators added that they didn’t appreciate White’s comparison of the arguments for DOMA with historical arguments against interracial marriage, either."

    Well boo f-ing hoo.

  • 11. michael  |  June 13, 2012 at 4:19 pm

    Yeah… here's an idea: If you don't want your comments to be compared with historical arguments against interracial marriage, then try coming up with something more original than the tired old "what's next?!?! people marrying their dogs?!? polygamy?!?!"

    When you say the same exact FUD excuses against marriage equality…that were just as invalid back then as they are in hindsight now, what rational person wouldn't draw that comparison?!?!

  • 12. Steve  |  June 14, 2012 at 7:04 am

    "Think of the childrens!" was also a common argument against interracial marriage. It was argued that biracial children would be teased and stigmatized.

  • 13. Bruce  |  June 13, 2012 at 4:45 pm

    So sorry they are "offended" by the "comparison of the arguments for DOMA with historical arguments against interracial marriage"! Unfortunately, that's EXACTLY what the arguments against gay marriage resemble. You can easily find examples where the same comments which are used today are nearly VERBATIM with the anti-racial-equality verbiage from the 50's and 60's.

    So, in a nutshell: SCREW YOU, Senators Hatch, Chambliss, Coats, Cochran, Wicker, Crapo, Grassley, Graham, McConnell, and Shelby! Imagine the "offense" you'd feel if actions like yours were taken to try and block YOUR civil rights. What a bunch of flaming hypocrites!

  • 14. DaveP  |  June 14, 2012 at 1:19 pm

    These senators could learn a valuable lesson from a fabulous old friend of mine. He once told me "Darling, if you don't like the things people are saying about you….stop doing the things they are talking about!"

  • 15. Tyler O.  |  June 13, 2012 at 6:25 pm

    Lindsey Graham is gay so he has a lot of nerve signing on to such a thing.

  • 16. Seth from Maryland  |  June 13, 2012 at 8:35 pm

    good news in Minnesota : Fortune 500 Corporation General Mills CEO announced tonight that General Mills opposes the marriage amendment seeking to limit the freedom to marry in Minnesota.

  • 17. Seth from Maryland  |  June 13, 2012 at 8:37 pm

    another big company on our side, im going to keep a timer on to see how long it is before nom starts a boycott lol

  • 18. Sam_Handwich  |  June 14, 2012 at 4:17 am

    Lindsey Graham???

  • 19. MFargo  |  June 14, 2012 at 7:00 am

    Two interesting articles in "The New Yorker" this week. One is a breezy history of the SCOTUS and how they arrived at a point in history to determine a law could be unconsitutional and the implications both to the government and its citizens.

    A more sobering article on Bryan Fischer of the American Family Association. (This is only a precise, but if you find the entire article it's worth it.)

  • 20. Waxr  |  June 14, 2012 at 6:44 pm

    The article from the New Yorker is misleading in that it makes it appear that the Supreme Court just came up with the idea of judicial review in their decision on Marbury v. Madison. Not true. The power of the Supreme Court to declare actions of Congress unconstitutional was fully discussed by Madison in the Federalist Papers. Even Thomas Jefferson did not dispute the Court's authority in this case.

    Marbury v. Madison is rather mundane as cases go, but the politics behind it is fascinating. Adams had stacked the courts. Jefferson was trying to gain control of the judiciary. If the Court decided in Marbury's favor, there was no way it could force Madison to comply with a court order. Therefore the court declared the law unconstitutional, giving victory to Jefferson and Madison by default..

  • 21. Steve  |  June 14, 2012 at 7:02 am

    Many of the judges actually went out of their way to downplay those comments and went to very great lengths to attribute some rational and benign motives to the senators. They have received far more deference than they deserve. Even when those quotes were brought up, they were never very central to the arguments against DOMA

  • 22. AnonyGrl  |  June 14, 2012 at 7:51 am

    In a footnote, the senators added that they didn’t appreciate White’s comparison of the arguments for DOMA with historical arguments against interracial marriage, either.

    Ummm… boo hoo? I don't APPRECIATE a lot of things… but if the shoe fits, wear it folks.

    Sorry. Was that too snarky?

  • 23. DaveP  |  June 14, 2012 at 1:21 pm

    Not snarky enough. But it's OK for now.

  • 24. Joey  |  June 14, 2012 at 8:49 am

    It should be noted that several republican senators who voted for DOMA refused to sign onto this brief, I think its more telling of pure animus that only these 10 senators (widely known for anti-gay sentiment) were the only ones willing to sign on this.
    It should also be noted that the court does not like to have its authority questioned and it does not like to have other branches of government interfere with its role!

  • 25. Steve  |  June 14, 2012 at 10:34 am

    It's curious that Inhofe didn't sign on. He is easily one of the most virulently homophobic senators

  • 26. Straight Dave  |  June 14, 2012 at 1:31 pm

    Maybe he reconsidering that life outside the closet may not be so bad after all.

  • 27. Tyler O.  |  June 14, 2012 at 2:24 pm

    And where are Jeff Sessions and Tom Coburn? Maybe they were on vacation because I can think of no one more homophobic in the Senate than those two.

  • 28. Mike  |  June 15, 2012 at 12:13 am

    Did Grassley sign on to 'give himself ammunition' when someone cites his 'the death panels (in the ACA) were what killed Grandma' comment?

    And he didn't state that on the floor of the Senate (in DC), but in Iowa.

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