In Gill case, GLAD replies to Obama administration’s latest motion defending DOMA

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.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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