At 9 a.m. PST on Friday, U.S. District Judge Jeffrey White will hear oral arguments on the constitutionality of DoMA after having asked that the lawyers spend their 45 minutes of alloted time addressing two pages of specific questions rather than rehashing what is in their briefs. From what's on that list, it looks like Judge White is going to give the DoMA defenders a rocky ride, with lots of reminders of the irrationality of their contentions.
At issue is defendant's motion to dismiss and plaintiff's motion for summary judgment in the case brought by federal employee Karen Golinski, seeking to add her spouse to the federal employee health insurance plan. In line with the Justice Department's policy of enforcing DoMA but not defending its constitutionality, the DoMA rationale will be argued by lawyers hired by Congressional Republicans.
Examples of the judge's questions:
- Why should the court not subject DOMA to heightened scrutiny for impacting marriage, as a basic fundamental freedom and an exercise of personal decision-making, protected by the right of privacy?
- What is the authority for the proposition that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?
- How does BLAG [the entity defending DoMA] distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?
The list goes on from there. Judge White even presses BLAG (which stands for Bipartisan Legal Advisory Group, a statutory entity that is composed of three members from the majority party in the House and two from the minority party) on whether it is legitimately constituted. One query to be answered: "Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?"
Should be fun for the plaintiffs.