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White House calls marriage law unconstitutional

In a strongly worded legal brief, the Obama administration 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 July 1 in federal court in San Francisco in support of a lesbian federal employee’s lawsuit claiming the government wrongly denied health insurance 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 U.S. 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 July 2 phone interview.

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. House Republicans previously had criticized Obama administration’s decision that the marriage act was unconstitutional and would not be defended by the Department of Justice in court.

In court filings, they have said that multiple courts have relied on Congress’ 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 insurance coverage for her same-sex spouse.

Her attorneys are now seeking summary judgment in her favor.

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