By SUDHIN THANAWALA
SAN FRANCISCO – Gays and lesbians are not entitled to the same heightened legal protection and scrutiny against discrimination as racial minorities and women in part because they are far from politically powerless and have ample ability to influence lawmakers, lawyers for a U.S. House of Representatives group said in a federal court filing.
The filing Friday in San Francisco’s U.S. District Court comes in a lesbian federal employee’s lawsuit that claims the government wrongly denied health insurance coverage to her same-sex spouse. Karen Golinski says the law under which her spouse was denied benefits–the Defense of Marriage Act–violates the U.S. Constitution’s guarantee of equal protection.
But attorneys representing the House’s Bipartisan Legal Advisory Group counter that DOMA is subject to a lower level of court scrutiny because gays and lesbians don’t meet the legal criteria for groups who receive heightened protection from discrimination. Under that lower standard, DOMA is constitutional, they argue.
“A spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless,” the filing says, arguing that the court should deny Golinski’s motion for summary judgment in her favor. “Accordingly, gays and lesbians cannot be labeled ‘politically powerless’ without draining that phrase of all meaning.”
The filing cites a poll of Americans showing support for gay candidates, New York’s decision to legalize gay marriage, and the lifting of the “don’t ask, don’t tell” policy that prohibited gays and lesbians from serving openly in the armed forces.
Golinski’s attorney, Tara Borelli, said in a phone interview Saturday, “We don’t think that DOMA can survive a court review under any level.”
A recent ruling by a District Court judge in Massachusetts supported that view, Borelli said.
Golinski’s case has received support from the Obama administration. In a brief filed in July that urged the court to find DOMA unconstitutional, the administration argued that it reflected Congressional hostility to gays and targeted an immutable characteristic- sexual orientation- that has nothing to do with someone’s ability to contribute to society.
The administration also characterized gays and lesbians as minorities with limited political power. It had previously said it would not defend the marriage act.
The House’s Bipartisan Legal Advisory Group stepped in to defend it.