WASHINGTON — In a surprise move, the Obama Administration on Tuesday asked the U.S. Supreme Court to hear two challenges relating to the Defense of Marriage Act, the 1996 federal law that defines marriage as between one man and one woman.
The announcement comes in the form of a letter from the Department of Justice asking the high Court to review two cases currently before two federal appeals courts.
In the first case — Golinski v. Office of Personnel Management — the U.S. Court of Appeals for the Ninth Circuit is scheduled to hear oral arguments in September. The Justice Department is asking the Supreme Court to take the case ahead of the appeals court.
In that case, Karen Golinski, who married her female partner of 20-plus years in August 2008, when it was legal to do so in California, was denied health care coverage for her spouse through her employer, the Ninth Circuit Court, which prohibits discrimination based on sexual orientation.
Ninth Circuit Chief Judge Alex Kozinski ordered the court to provide Golinski benefits but the Office of Personnel Management (OPM), headed by openly gay appointee John Berry, instructed the insurance company not to enroll Golinski’s spouse, noting that DOMA precluded the federal employer from recognizing Golinski’s marriage.
In Golinski’s lawsuit, brought by Lambda Legal, Judge Jeffrey White of the U.S. District Court for Northern California ruled on Feb. 22 that DOMA violates the rights of gays and lesbians to equal protection of the law.
The Justice Department also asked the Supreme Court to review the case of Massachusetts v. Department of Health and Human Services.
On May 31, in a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the First Circuit in Boston agreed with a lower court judge who ruled in 2010 that DOMA is unconstitutional because it interferes with the right of a state to define marriage.
Last week, the House Bipartisan Legal Advisory Group, led by the House Spearker John Boehner (R-Ohio) formally appealed that decision to the U.S. Supreme Court.
“This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA – which prohibits the federal government from recognizing same-sex couples’ valid marriages– to be unconstitutional,” said Tara Borelli, staff attorney for Lamba Legal, in a statement late Tuesday.
“There are loving, married same-sex couples, and grieving lesbian and gay widows and widowers around the country who are being hurt by the government’s discriminatory actions – that’s why there are DOMA cases pending in several jurisdictions, brought on behalf of many plaintiffs. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution,” she said.
In the Golinski filing, U.S. Solicitor General Donald Verrilli Jr., said the Supreme Court should accept the case to answer once and for all “whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.”