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social sciences

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Defense of Marriage Act (DOMA)  
 
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Judge White ruled that the stated goals of DOMA 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."

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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.

Judge White concluded 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."

Dragovich Decision

Dragovich v. U. S. Department of the Treasury went to trial in 2011, and on May 24, 2012, Judge Wilken issued a decision in which she ruled DOMA unconstitutional. She 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."

She ruled 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.

DOMA Ruled Unconstitutional by Court of Appeals

On May 31, 2012, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional in the combined cases Gill v. Office of Personnel Management and Massachusetts v. United States.

The decision, authored by Judge Michael Boudin, who was appointed to the bench by President George H. W. Bush, marked the first time DOMA was declared unconstitutional by a federal appellate court. Chief Judge Sandra Lynch, who was appointed by President Bill Clinton, and Judge Juan Torruella, who was appointed by President Ronald Reagan, joined in Boudin's decision.

The decision upheld the opinion of U.S. District Court Judge Joseph Tauro, issued on July 8, 2010, that the federal law defining marriage as consisting of only one man and one woman violates the equal protection clause of the Fifth Amendment. The Court rejected Judge Tauro's holding that DOMA violated the Tenth Amendment, but it evoked the principles of federalism in reaching its decision.

The Court declined to apply "heightened scrutiny" in testing the legislation, but it relied on recent Supreme Court decisions, such as Romer v. Evans, that acknowledged "the historic patterns of disadvantage suffered by the group adversely affected." In those decisions, the Supreme Court, Boudin wrote, "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered."

Applying this standard, which is sometimes described as "rational basis with teeth," the Court concluded: "[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

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