Legal Briefs (October 2012)

NASW, through its Legal Defense Fund, joined the National Women’s Law Center in August in filing an amicus brief with the U.S. Supreme Court in Fisher v. University of Texas at Austin. The brief supports the university’s admissions process that allows consideration of race as one factor among many in the process of selecting a diverse student body.

Abigail Fisher, a white female applicant, is challenging the school in her denial of admission.

The brief notes that a state university should have the freedom to draft admission policies that support a diverse educational setting.

“An educational environment that brings together individuals from diverse backgrounds—and thereby dispels race- and sex-based stereotypes—is essential to enable all students to participate effectively in government, civil society, and the business community,” the brief states.

The Council on Social Work Education and the Group for the Advancement of Doctoral Education in Social Work joined the American Council on Education in filing a separate amicus brief in the same case. It also urges the high court to uphold the university’s admissions policy.

NASW joined the American Psychological Association and others in filing an amicus brief on July 9 in the 9th U.S. Circuit Court of Appeals in the case Golinski v. Office of Personnel Management.

The brief is the latest action by the NASW Legal Defense Fund to present social science research finding to the courts as plaintiffs challenge the legality of the Defense of Marriage Act, or DOMA. The federal law passed in 1996 defines marriage, for purposes of applying federal laws, regulations and benefits, as between one man and one woman.

The brief argues that research strongly supports the conclusion that discrimination by the federal government between married same-sex couples and married opposite-sex couples in awarding benefits unfairly stigmatizes same-sex couples.

“There is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well adjusted,” it states.

Earlier this year, NASW joined a coalition of mental and medical professional organizations in filing an amicus brief in the 1st U.S. Circuit Court of Appeals in Massachusetts v. U.S. Dept. of Health and Human Services. On May 31, that court ruled DOMA as unconstitutional.

Both cases may be headed to the U.S. Supreme Court, however. In July, defendants in the Golinski case petitioned to bypass the 9th Circuit Court and to have the case decided in the U.S. Supreme Court, a request to which Golinksi has acquiesced.

In her July 23 response to the petition for certiorari, Golinski cited the briefs filed by NASW and other organizations in support of her argument that the case raises issues of far-reaching significance that require definitive resolution by the court. A petition for Supreme Court review is also pending in the Massachusetts case.

The June 2012 LDF Legal Issue of the Month article, The Defense of Marriage Act (DOMA).

It offers an in-depth review and analysis of the cases.

Written by Sherri Morgan, LDF Associate Counsel, and Carolyn Polowy, NASW General Counsel, the article notes that based on multiple petitions for review filed with the U.S. Supreme Court, the constitutionality of DOMA will most likely be decided within the next year.

“NASW will continue to monitor the legal developments for LGBT persons and families and to provide forums for the expansion of professional knowledge and increased understanding of clinical, social and other complexities that arise in social work practice,” the article states.

Visit the NASW LDF Amicus Brief Database for these and other cases.