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Topics In the News
Another Court Rules DOMA Unconstitutional
Posted by: Claude J. Summers on 05/25/12
Last updated on: 05/25/12
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On May 24, 2012, Judge Claudia Wilken of the U.S. District Court for Northern California became the latest judge to rule that the Defense of Marriage Act is unconstitutional.

The ruling comes in Dragovich v. U.S. Department of the Treasury, which involves California state employees who were barred because of DOMA from enrolling their same-sex spoouses in the state's long-term care program, which is regulated by federal tax law.

As Chris Geidner of MetroWeekly reports, Wilken found that Section 3 of DOMA--the federal definition of "marriage" and "spouse"--"violates the equal protection rights of Plaintiff same-sex spouses" and that subparagraph (C) of Section 7702B(f) of the Internal Revenue Code "violates the equal protection rights of Plaintiff registered domestic partners."

Wilkens found that "both provisions are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan."

She ordered CalPERS not to use DOMA or the relevant tax provision to deny enrollment to same-sex spouses and registered domestic partners in the state. She also ordered that the federal government not disqualify CalPERS's plan from the beneficial tax treatment for following the court order. Finally, Wilken ruled that the decision would be stayed, or put on hold, during an appeal of her decision if one is sought.

As in other recent cases challenging DOMA, the Department of Justice declined to defend the consitutionality of Section 3. Instead, the House Bipartisan Legal Advisory Group (BLAG)--controlled by the House Republican leadership--was granted permission to intervene in order to defend the statute.

The Department of Justice did, however, defend the tax code provision against a "substantive due process" challenge, arguing that "the denial of eligibility for tax benefits associated with CalPERS's long-term care insurance does not infringe on a fundamental right or a significant liberty interest."

More disturbingly, the Department of Justice also argued that "Section 7702B(f)'s non-inclusion of domestic partners as eligible relatives is not a classification based on sexual orientation or any other protected class. The term 'domestic partner' is not synonymous with a partner of the same sex because in the nine states that recognize domestic partnerships, only two limit it to same-sex couples."

Wilken rejected the arguments of both BLAG (on the constutionality of DOMA) and of the Department of Justice (on the domestic partner challenge). She ruled that denying married same-sex couples or same-sex domestic partners the ability to enroll in the long-term care plan violates the equal protection clause.

Wilken is the fourth federal judge to find DOMA unconstitutional. Other challenges to DOMA are in federal courts at both the Distric and appellate levels.

Judge Wilken's decision may be read here.

In the video below, witnesses at a Senate hearing testify as to the impact on DOMA on individuals.

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