The Ninth Circuit staff attorney who is challenging the Defense of Marriage act has filed her merits brief on appeal, and her lawyers want to make one thing perfectly clear: They’re not calling the United States Congress bigoted. Not necessarily.
Ten senators who voted for DOMA in 1996 have complained that in striking down the law earlier this year, U.S. District Judge Jeffrey White ruled that “the legislative history is replete with expressed animus toward gay men and lesbians.” And House Republicans say the Justice Department, which has joined staff attorney Karen Golinski’s effort to invalidate the law, has been "accusing Congress of bigotry and animus in enacting the law.”
In a brief filed Thursday for Golinski at the Ninth Circuit [pdf], Morrison & Foerster partner Rita Lin is trying to turn down the temperature a bit. A subheading in the brief states, “Finding That DOMA Fails Rational Basis Review Does Not Require Concluding That Bigotry Motivated The Legislators Enacting It.”
“That a law lacks a rational basis does not necessarily imply ‘malice or hostile animus’ but rather ‘simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different,’ Lin wrote, quoting a concurrence from Supreme Court Justice Anthony Kennedy in a disabilities case.
Whether that will assuage the legislators is unclear -- Judge White quoted that same passage from Kennedy in his ruling in the case [pdf].
Lin also quoted from the Supreme Court’s June 28 health care ruling to make a point about DOMA. “Last week Chief Justice Roberts observed that ‘sometimes “the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent” for Congress’ action,’” she wrote. “DOMA is an unprecedented departure from this nation’s federalist tradition, the first time in our history that Congress has intruded on the states’ sovereignty in determining who is validly married.”
The case is Golinksi v. U.S. Office of Personnel Management, Nos. 12-15388 and 12-15409.