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Obama administration says DOMA motivated by hate of gays, supports lesbian employee's case

By SUDHIN THANAWALA, Associated Press

SAN FRANCISCO -- In a strongly worded legal brief, the Obama administration has said the federal act that defines marriage as being between a man and a woman was motivated by hostility toward gays and lesbians and is unconstitutional.

The brief was filed Friday in federal court in San Francisco in support of a lesbian federal employee's lawsuit claiming the government wrongly denied health coverage to her same-sex spouse.

The Justice Department says Karen Golinski's suit should not be dismissed because the law under which her spouse was denied benefits - the Defense of Marriage Act - violates the constitution's guarantee of equal protection.

"The official legislative record makes plain that DOMA Section 3 was motivated in large part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3," the brief reads, referring to the section in the act that defines marriage as being between a man and a woman.

Though the administration has previously said it will not defend the marriage act, the brief is the first court filing in which it urges the court to find the law unconstitutional, said Tobias Barrington Wolff, a law professor at the University of Pennsylvania.

"This brief represents the concrete manifestation of a complete paradigm shift in the federal government's position on anti-gay discrimination and the constitutional rights of married same-sex couples," Wolff said in a phone interview Saturday.

The brief argues that gays and lesbians have been subject to a history of discrimination by federal, state and local governments and private parties. It also lays out the administration's position that sexual orientation is an "immutable characteristic," that gays and lesbians are minorities with limited political power and that sexual orientation has no bearing on someone's ability to contribute to society and advances no legitimate policy interest.

"It's quite powerful to have the administration saying in a court filing that this kind of discrimination should be viewed suspiciously," said Tara Borelli, an attorney for Golinski.

Attorneys for a U.S. House of Representatives group that has stepped in to defend the marriage act's constitutionality in the Golinski case did not immediately respond to requests for comment.

In court filings, they have said that multiple courts have relied on Congress's justifications for enacting the law to uphold its constitutionality.

Golinski is a 9th U.S. Circuit Court of Appeals lawyer. She sued the U.S. Office of Personnel Management last year for not authorizing family health coverage for her same-sex spouse.

Her attorneys are now seeking summary judgment in her favor.

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The President's position on marriage has fully "evolved". (see AP article below from yesterday on lawsuit in San Francisco).

Now the leader of our nation leads the fight to redefine marriage. Should the President be the one to lead this effort to redefine marriage? 31 states have voted otherwise. So did Congress in 1996 with the Defense of Marriage Act. But the administration says Congress was intolerant of gays and their intimate relations. Or might it rather have have been that they were protecting an institution which the nation considers most sacred and fundamental?? Christian churches and Muslims feel the same way on this matter of marriage.

But then this President has chosen from his first days in office to fiercely promote abortion and the destruction of human embryos. Is he a visionary leading society or an arrogant and not very deep thinking politician who doesn't care what the majority of Americans believe? Do we need him appointing any more judges? Can the nation survive four more years of this kind of "yes we can" leadership??

Yes it can.

Either marriage is defined by the State, in which case it is what the State SAYS it is, or it's definition is religious, in which case the State should not be in the marriage business. You can't have it both ways unless this is a theocracy, which it isn't (yet).

The President is a Constitutional scholar so it is hardly surprising that he would understand the simple fact that DOMA violates the 14th Amendment on the bases of due process and equal protection. Keep in mind that Southern states instituted Jim Crow to keep black people from access to public facilities as well as from interracial marriage for nearly a century after the Civil War. Such was the tyranny of a majority interested in maintaining the rights of U.S. citizenry as a privilege exclusive to itself, precisely why the Equal Protection Clause was instituted.

Marriage is a civil right as well as a religious privilege. Religions in no way are forced to marry gay couples, just as the Roman Catholic Church has never been obligated by the government to marry divorced persons.

Consequently, there is no argument advanced by conservatives save prejudice against gay people and their full participation in U.S. society that should bar same sex couples from the fundamental right of marriage. The so-called "Defense of Marriage Act" should be struck down immediately and relegated to history along with slavery, coverture, Jim Crow and all of the other oppressive laws intended to demonize and marginalize particular identifiable groups.

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