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Topics In the News
DOMA Again Ruled Unconstitutional
Posted by: Claude J. Summers on 02/22/12
Last updated on: 02/24/12
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On February 22, 2012, the U.S. District Court for the Northern District of California issued a ruling declaring Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. The decision in Golinski v. Office of Personnel Management is the third federal court ruling that has found the discriminatory statute unconstitutional.

In Golinski, Judge Jeffrey S. White, who was appointed to the bench in 2002 by President George W. Bush, declared "that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by [the Bipartisan Legal Advisory Group of the United States House of Representatives] constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further."

The case stems from federal judicial law clerk Karen Golinski's request for health benefits for her spouse, Amy Cunninghis. The couple, who have been partners for 20 years, were married in California in 2008. When she attempted to enroll her wife in the federal health insurance program, her request was denied because DOMA prohibits the federal government from recognizing same-sex marriages. After pursuing internal appeals, Golinski, represented by Lambda Legal Defense and Education Fund, filed suit against the Office of Personnel Management.

Judge White ruled that the stated goals of DOMA, which has been law since 1996, could not pass muster under either a so-called "heightened scrutiny" test or even a lower "rational basis" threshold. He concluded that the appropriate level of scrutiny when reviewing statutory classification based on sexual orientation is heightened scrutiny and noted that "Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny."

"The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is 'to define the liberty of all, not to mandate our own moral code,'" White wrote. He added that tradition cannot itself justify a law. "Instead, the government must have an interest separate and apart from the fact of tradition itself."

After detailing how DOMA fails under both a heightened scrutiny test and a "rational basis" test, Judge White found that DOMA unconstitutionally discriminates against same-sex married couples.

Although he found that animus is clearly present in DOMA's legislative history, he posited that something short of malice may have motivated its passage: "Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves," he wrote, quoting from a U.S. Supreme Court case decided by Justice Anthony Kennedy, whom he repeatedly quotes in citations from Romer v. Evans and Lawrence v. Texas, the seminal gay rights decisions written by Justice Kennedy.

Judge White concludes his 43-page decision: "In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse."

Tara Borelli, staff attorney in Lambda Legal's Los Angeles office, issued a statement in response to the Golinski decision: "This ruling, the first to come after the Justice Department announced it would no longer defend this discriminatory statute in court, spells doom for DOMA. The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment. The Court agreed with us that sexual orientation discrimination by the government should receive heightened scrutiny under the constitution. It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive."

Chris Geidner at MetroWeekly, emphasizes that the Obama administration did more in the Golinski case than merely decide not to defend DOMA.

For example, the brief filed by the Department of Justice detailed the history of discrimination practiced by the government against glbtq people, from the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employment and President Eisenhower's executive order adding "sexual perversion" as a ground for dismissal from government service to the role of the FBI and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."

In addition, during the December 16, 2011 oral arguments in the case, the Department of Justice sent the head of the civil division, Assistant Attorney General Tony West, to argue its position. It was, a DOJ spokesperson said at the time, only the second time that West appeared in court as assistant attorney general to argue a case.

West told Judge White that "Congress gets to draw the lines [of which benefits it wants to give], but it can't draw those lines in a way that is arbitrary or discriminatory and disfavors a group which may be unpopular, which is what's happening with here with the Defense of Marriage Act."

He said, "Ms. Golinski and her wife are already married. So, the only question is whether or not the federal government has a good reason to be able to make these distinctions, to draw these lines. And, we think the federal government does not."

The Golinski decision may be found here: GolinskiVOPM.pdf.

This decision joins two other decisions by federal courts in declaring DOMA unconstitutional. The most important of these, the July 8, 2010 decision by U.S. District Court Judge Joseph Tauro in Gill v. Office of Personnel Management and Massachusetts v. United States reached similar conclusions and is currently under appeal.

Other lawsuits challenging the constitutionality of DOMA are making their way through the federal courts.

On November 9, 2010, Gay & Lesbian Advocates & Defenders (GLAD) filed Pederson v. Office of Personnel Management. The plaintiffs are five couples and a widower from Connecticut, Vermont, and New Hampshire, who, solely because of DOMA Section 3, have been denied legal protections for which they are currently eligible and for which they have applied. GLAD argues that DOMA violates the equal protection clause of the Fifth Amendment.

Also on November 9, 2010, the ACLU LGBT Project filed a lawsuit, Windsor v. United States, on behalf of Edith Windsor that seeks to declare DOMA unconstitutional on equal protection grounds. Windsor and her late spouse Thea Spyer lived together for 44 years. They were married in Canada in 2007. Because the federal government refused to recognize their marriage, Windsor was forced to pay more than $350,000 in federal estate taxes when Spyer died in 2009. Had their marriage been recognized, Spyer's estate would have passed to Windsor without any tax.

The Pederson and Windsor cases will be heard in the Second Circuit, a circuit in which the question of the level of scrutiny to be used in considering sexual orientation issues has not been established. Hence, one issue that will be raised in these cases will be whether claims of discrimination on the basis of sexual orientation should be subjected to heightened scrutiny rather than merely the rational basis standard.

Another suit challenging DOMA in federal court is Dragovich v. U. S. Department of the Treasury, which involves California state employees who were barred because of DOMA from enrolling their same-sex spouses in the state's long-term care program, which is regulated by federal tax law. In a ruling released on January 18, 2011, federal district Judge Claudia Wilken permitted their suit to proceed over objections from the Justice Department and in doing so expressed strong doubts about the constitutionality of DOMA.

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