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Justice lays out government’s ‘significant and regrettable’ history of anti-gay bias

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The Justice Department on Friday filed a brief siding with a lesbian federal employee who is suing to get health insurance for her wife, and arguing that Section 3 of the Defense of Marriage Act is unconstitutional.

Plaintiff Karen Golinski is an appeals court attorney in California, who legally married her wife in August 2008 and wants her to be covered by the Federal Employees Health Benefits Program. However, since DOMA’s Section 3 defines marriage as between one man and one woman, the federal government is banned from extending full health benefits to same-sex spouses and partners, though the Obama administration and Office of Personnel Management want to change that.

In addition to backing Golinski’s suit and opposing a motion by the House’s Bipartisan Legal Defense Group to dismiss it, Justice’s brief also serves as a mea culpa for the way the government has treated gay and lesbian employees over the last six decades. “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals,” Justice said.

  • In 1950, a Senate subcommittee began investigating the government’s employment “of homosexuals and other sexual perverts,” and found that about 1,700 job-seekers were denied employment because of a record of homosexuality “or other sex perversion.”
  • President Eisenhower issued an executive order in 1953 that officially deemed sexual perversion as grounds for investigation and possible dismissal from federal service, throughout the entire federal government. This effectively required all gay people to be fired from their federal jobs, Justice said.
  • Agencies began enforcing those rules zealously, Justice said. The State Department had investigators interrogate male applicants to uncover “any effeminate tendencies or mannerisms,” used polygraphs on people who denied allegations they were gay, and sent inspectors around the world to uncover homosexuals in State’s ranks.
  • The FBI had state and local police officers supply arrest records on “morals charges” — even if someone was never convicted — as well as data on gay bars and other gay hangouts, and press articles on the gay subculture.
  • And the U.S. Postal Service helped the FBI by setting up a watch list of men who subscribed to bodybuilding magazines or exchanged letters with suspected gay men. Once the Postal Service concluded someone was gay, it would track his mail to uncover more suspected gay men.

This all continued until 1975, when the Civil Service Commission — OPM’s predecessor — officially prohibited discrimination based on sexual orientation. “The end result was thousands of men and women forced from their federal jobs based on the suspicion they were gay or lesbian,” Justice wrote.

Metro Weekly, the gay-oriented Washington newspaper that posted the Golinski brief online, called the brief “historic.” “The brief … is the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people,” Metro Weekly wrote.

Justice in February announced it had decided Section 3 of DOMA is unconstitutional, and would no longer defend it. The House’s Bipartisan Legal Defense Group soon took up DOMA’s defense, and in June asked the U.S. District Court in California’s northern district to dismiss Golinski’s case.

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