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DOJ Asks Ninth Circuit for Swift Justice in DOMA Appeal

By Robyn Hagan Cain on March 29, 2012 | Last updated on March 21, 2019

The Obama administration isn't technically involved in the Defense of Marriage (DOMA) appeal that's making its way up the federal court ladder, but it wants the Ninth Circuit Court of Appeals to act quickly on the case.

This week, the Department of Justice asked the Ninth Circuit the speed up review of Judge Jeffrey White's February decision declaring DOMA unconstitutional, and to apply strict or immediate scrutiny to its DOMA analysis, reports the San Francisco Chronicle.

The case at the center of this appellate controversy is Golinski v. OPM. Karen Golinski, a staff attorney for the Ninth Circuit Court of Appeals, sued the U.S. Office of Personnel Management to obtain health insurance benefits for her spouse, Amy Cunninghis. Golinski and Cunninghis were legally married during in 2008 when California permitted same-sex marriages.

Golinski sought a determination from the court that DOMA Section 3, as applied to her, violates the United States Constitution by refusing to recognize lawful marriages when determining benefits for federal employees, and claimed that she was unconstitutionally denied legal protections and benefits under federal law that would be available to her if she were a heterosexual with a opposite-sex spouse.

In February, Judge White ruled DOMA is unconstitutional as applied to Golinski because it "treats gay men and lesbians differently on the basis of their sexual orientation" without any legal basis. Judge White noted that "the imposition of subjective moral beliefs of a majority on a minority cannot provide a justification."

Since the Justice Department stopped defending DOMA in 2001, Speaker of the House John Boehner and the House of Representatives' Bipartisan Legal Advisory Group (BLAG) asked the Ninth Circuit last month for a three-judge panel to review Judge White's opinion.

But a three-judge panel's decision is subject to both en banc and Supreme Court review, which isn't fast enough for the Obama administration. Thus the Justice Department asked the Ninth Circuit Court of Appeals to skip the panel in favor of an 11-judge hearing.

Expedience may not be the Justice Department's only motivation: In 1990, the circuit adopted rational basis scrutiny for evaluating equal protection based on sexual orientation, reports the Chronicle. If the Ninth Circuit indulges the request, it could open the door for the court to swap scrutiny standards in the DOMA appeal.

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