The Obama administration broke new ground July 1 in a legal brief filed in the case of a San Francisco federal-court employee, Karen Golinski, who has been trying to put her wife on her work health-care plan.
The expansive brief from the Justice Department says the federal Defense of Marriage Act, which prohibits the government from recognizing same-sex marriages, is unconstitutional because governmental classifications based on sexual orientation should be viewed through the legal lens of heightened scrutiny.
That approach should be used, the government said, because "gay and lesbian individuals have suffered a long and significant history of purposeful discrimination," because "sexual orientation is an immutable characteristic," and because "gays and lesbians are a minority group that has historically lacked political power."
The brief says Congress passed DOMA in 1996 in substantial part because of "animus toward gay and lesbian individuals." The document goes on to detail a litany of anti-gay sins of federal, state and local governments over the decades.
"The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," the brief says.
Lambda Legal's Tara Borelli commented: "The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional. Lambda Legal has been arguing that for years -- it's great to have them on our side."
"This is an historic shift with enormous significance," Borelli said. "As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment."