“The president and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional,” Holder wrote in a letter to House Speaker John Boehner on Feb. 23.
The DOJ brief filed July 1 includes an extensive discussion of how the government, from the local to the federal level, has discriminated against gay people — including the September 2009 Atlanta Eagle raid as an example.
In December 2010, the city of Atlanta agreed to a $1.025 million settlement with numerous plaintiffs who sued the city in federal court alleging their constitutional rights were violated when APD Vice officers and members of the now disbanded Red Dog Unit raided the gay bar on Ponce de Leon Avenue, forced them to the floor, treated them roughly as well as hurled anti-gay slurs at them. The case is known as Calhoun vs. Pennington.
“State and local police also relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and lesbian people congregated in public,” the DOJ brief states, citing legal cases and studies dated from 1964 to 1982.
“Similar practices persist to this day,” it continues, citing the Eagle case, Calhoun v. Pennington, described as “involving September 2009 raid on Atlanta gay bar and police harassment of patrons.”
The brief also acknowledges that “the federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals,” and admits that the Defense of Marriage Act was prompted by anti-gay bias.
Lambda Legal Staff Attorney Tara Borelli, who represents Golinski, called the argument “an historic shift with enormous significance.”
“As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment,” Borelli said in a press release.
“After putting forth a thorough argument that laws that treat lesbian and gay people differently must be subject to heightened scrutiny, the DOJ concludes that DOMA fails to meet the required legal test and is unconstitutional,” Lambda Legal noted in the press release.
Dan Grossman, who served as lead attorney for the Eagle patrons in cooperation with Lambda Legal and the Southern Center for Human Rights, today sent an email to supporters praising Lambda’s role in both the Eagle and Golinski cases.
“The Golinski case was brought by Lambda Legal, and is another example of Lambda Legal’s tireless efforts on behalf of equal rights for all, which also includes, of course, their participation in the Eagle Raid case itself,” Grossman said.
— Ryan Watkins contributed