While we’ve been focused on the legislative effort to repeal Don’t Ask, Don’t Tell, let’s not forget that there’s a move to overturn DOMA in the federal courts. Led by GLAD, plaintiffs in Massachusetts are challenging Section 3 of that law in the case, Gill et. al. v. Office of Personnel Management. GLAD’s website for the case is here.
The Obama administration, through its Department of Justice, has been defending DOMA. Today, GLAD filed a reply to the Obama administration’s opposition to the plaintiff’s motion for summary judgment. (In legalese, a motion for summary judgment asks the judge to decide the case based on the evidence gathered in discovery, as a matter of law, meaning without the need for a trial.)
GLAD’s reply, a pdf can be found here under “Case Information”, is a fascinating read because the Obama DOJ tried to have it both ways in its latest motion, stating that DOMA is discriminatory but worth defending.
The lawyers on our side had a legal field day with that. This is my favorite part of the brief:
There Is No Interest in Preserving the Status Quo for the Sake of Preserving the Status Quo.
Defendants rely chiefly on their contention that DOMA preserved the status quo as of 1996, when gay and lesbian couples could not marry and therefore were denied access to the federal rights and benefits associated with marriage. SJ Opp. at 15. That argument goes nowhere.
To begin with, preserving the status quo can be a legitimate means of serving some independent, legitimate government interest, but simply preventing change is not itself an independent government interest. Although Defendants cite a string of cases to support their contention that preserving the status quo is a legitimate government interest for equal protection purposes, they all rest on specific explanations of why preserving the status quo for a limited time served some independent, valid purpose.
Here, the Defendants fail to show that the status quo DOMA preserved was one they had any interest in preserving. The only reason same-sex couples were denied federal marriage- based rights or benefits in 1996 was that they were not married. When States began marrying same-sex couples, that rationale ceased to exist.
We keep saying that much of D.C. is stuck in the early 90s when it comes to LGBT issues. In the Gill case, the Department of Justice literally argued to preserve the status quo circa 1996.