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social sciences

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Defense of Marriage Act (DOMA)  
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Responding to the Justice Department's contention that DOMA simply attempted to preserve the status quo as states resolve the issue of same-sex marriage, Judge Wilken pointed out that "Section three of the DOMA . . . alters the status quo because it impairs the states' authority to define marriage, by robbing states of the power to allow same-sex civil marriages that will be recognized under federal law."

She concluded that adopting a federal definition of marriage was a departure from the status quo, not its preservation; and that the inability of California to extend eligibility for its long-term care insurance program is an example of the disruption to customary practice caused by DOMA.

Reversal at the Justice Department

In a major development, Attorney General Eric Holder announced on February 23, 2011, a reversal of its position that it was bound to defend the constitutionality of DOMA.

Sponsor Message.

The Attorney General announced that on instructions from the President, the Justice Department would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act as applied to same-sex married couples. The Executive Branch will continue to enforce the law unless Congress repeals it or there is a final judicial ruling striking it down, but the Administration would no longer assert its constitutionality in court.

The Attorney General concluded, "After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."

In addition, the Attorney General pledged to advise courts of the conclusions that the Justice Department has made relative to the constitutionality of the Defense of Marriage Act and of the need for heightened scrutiny in reviewing cases related to sexual orientation discrimination.

Republican Speaker of the House John Boehner quickly arranged for the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) to defend the statute.

In the first case to be decided after the Justice Department announced that it would no longer defend DOMA, the law was again declared unconstitutional.

In a sweeping decision released on June 14, 2011, the Los Angeles-based United States Bankruptcy Court for the Central District of California ruled that DOMA violates the principle of equal protection. In a case known as In re: Gene Douglas Balas and Carlos A. Morales, Joint Debtors, involving a married couple whose attempt to file jointly for bankruptcy protection was opposed by the United States Trustee on the grounds that they were both males, the Bankruptcy Court ruled that DOMA violates the U. S. Constitution's Fifth Amendment guarantee of equal protection under the law.

The decision, signed by 20 of the 24 judges of the Court, held that "This court cannot conclude from the evidence or the record . . . that any valid governmental interest is advanced by DOMA as applied to the Debtors. . . . In the court's final analysis, the government's only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision. The court has no doubt about its conclusion: the Debtors have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled."

Golinski Decision

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 was the third federal court ruling finding 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."

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