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Federal Court Says DOMA Unconstitutional: Analysis of the Ruling


WhiteAnother day, another victory for equality. Today, Judge Jeffrey White, a George W. Bush appointee to the federal bench, declared the Defense of Marriage Act (DOMA) was unconstitutional as it applied to Karen Golinski.

Ms. Golinski is a married lesbian who wishes to put her wife on the health plan she gets through her employer, the Ninth Circuit Court of Appeals. But, by declaring that federal law only recognizes opposite sex marriages, DOMA Section 3 prevents her from doing this, something that every heterosexual married federal employee can do. Also, you may recall, President Obama refused to defend DOMA in this case, ceding that role to Republicans in the House.

Today's decision in Golinski v. Office of Personnel Management is notable for a number of reasons, not the least of which is its role as the latest nail in DOMA's coffin.

First, Judge White declared that discrimination on the basis of sexual orientation merits heightened scrutiny in an equal protection analysis.

Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights.

Third, in dismantling the proffered and any conceivable justification for DOMA Section 3, the court authoritatively rejected House Republican attempts to buttress DOMA with recourse to certain conceptions of morality.

Fourth, Judge White's reliance on the other DOMA cases and Ninth Circuit precedent in other gay rights cases emphasizes the primacy of a federal litigation approach in our quest for marriage recognition.

Regular readers of this column should be well-equipped to wrestle with this opinion.

I summarize the decision and its normative implications, AFTER THE JUMP...

GolinskiThis decision came from dueling motions to dismiss and motions for summary judgment. House Republicans want to dismiss the case, arguing that DOMA is constitutional and Ms. Golinski has no right to add her wife to her health plan. Standing against the House are Ms. Golinski -- through her incomparably excellent attorneys at Lambda Legal, Tara Borelli and Susan Simmer, and their co-counsel at the firm Morrison Foerster LLP -- and the Obama Administration, both of whom want summary judgment in Ms. Golinski's favor. Asking for summary judgment is like asking a referee to declare Adele the winner in a singing competition between her and a mute: a party wins summary judgment when there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Or, in other words, given the governing law and undisputed facts, there is no possible way that a trial could come out any differently than if summary judgment were granted right now.

Take a moment to consider what victory at the summary judgment stage means. In Perry v. Brown, Ted Olson, David Boies, and their AFER colleagues took us through a detailed trial, introducing evidence about gay parents, the harms of denying marriage recognition, and the animus toward gay people inherent in Proposition 8. Here, Ms. Borelli and Ms. Simmer and Morrison Foerster submitted briefing and evidence and the court found their (and the Obama Administration's) positions so compelling that Judge White did not even need a trial to declare DOMA unconstitutional. Of course, the high summary judgment threshold makes it easier to reverse on appeal: all an appellate court need find is evidence of a disputed material fact. But, given the decision, and the growing consensus in the federal courts on the unconstitutionality of DOMA Section 3, that is unlikely.

What is the appropriate standard of review?

For the standard of review to even be an issue, Judge White had to distinguish a 1990 Ninth Circuit case, High Tech Gays v. Defense Industrial Security Clearance Office, which stated that gays are not a suspect or quasi-suspect class that merit heightened scrutiny. The court reminded us why pre-Romer and pre-Lawrence law in this area is simply no longer good law. High Tech Gays expressly relied on the fact that Bowers v. Hardwick (1986) allowed for the criminalization of homosexual conduct; that is, if sodomy could be criminalized for gays, but not for everyone else, then gays could not possibly be members of a protected class. But, Bowers was long ago overturned by Lawrence v. Texas (2003), which not only erased the artificial distinction between gay "conduct" and gay "identity," but also declared that gays enjoy the liberty to intimate association like anyone else (Golinski, slip op., at 15-16).

So, if High Tech Gays did not control, the court needed to define the appropriate standard of review. Judge White took us through the four factors used to justify heightened scrutiny -- a history of discrimination, whether the group's distinguishing characteristic affects members' ability to contribute to society, immutability of the distinguishing characteristic, and political powerlessness of the victimized group -- but noted that the first two have long been considered the most important (14).

There has indeed been historic discrimination against gays and being gay has no bearing on our ability to contribute to society (19), and while House Republicans offered some evidence suggesting that "a very small minority of the gay and lesbian population may experience a small amount of choice in their sexuality" (notably, that evidence included reference to 'ex-gays'), Judge White was rightfully persuaded by the "vast majority" of evidence that shows that gays never experience a change in sexual attraction.

And, regardless, Ninth Circuit precedent had already concluded that sexual orientation was an immutable characteristic (20). House Republicans also offered evidence that gays are not "politically powerless," by pointing out President Obama's recent appointment of openly gay judges to the federal bench, the President's refusal to defend DOMA, and "a recent spate of news stories" about pro-gay developments. But, Judge White saw through this canard. Four openly gay judges is a drop in the ocean; after all, gay people are discriminated against in the 30 states that have constitutional amendments banning marriage recognition, there is (as yet) no federal anti-discrimination legislation and only a few at the state and local level, and so on (21-23). Progress in the fight against discrimination is no evidence of power, whatever Justice Scalia might state in his dissents.

Given heightened scrutiny, the animus expressed toward gay people during the DOMA debate -- gays were "immoral," "depraved," and "unnatural" -- could not justify DOMA's discrimination. Nor could any of Congress's proffered objectives:

DOMA does not encourage responsible procreation and child rearing: Judge White rejected House Republican criticisms of the studies that showed gay people are great parents and noted that it is undisputed that several studies show how responsible gay parents are (28). Besides, the court noted, even if Congress wanted to encourage responsible procreation in opposite sex households, DOMA did not -- and could not -- encourage straight people to have more kids within marriage. Denying federal recognition of people who are already married just burdens the married couple.

DOMA does not nurture traditional marriage. A law that does not change state marriage laws could not benefit traditional marriage: DOMA cannot encourage already married gay people to marry people of the opposite sex (29-30).

If DOMA defends traditional morality, that justification is insufficient. Perhaps DOMA defends conservatives' views of traditional morality, but Romer and Lawrence clearly stated that moral disapproval cannot justify discrimination against an unpopular group.

DOMA also failed rational basis review in Judge White's alternative holding, which relies on the long-held view that discrimination against unpopular groups requires a "more searching" form of rational basis. Even under this lower standard, DOMA failed.

DOMA does not maintain the status quo. A long history of discriminating against gays is no reason to continue that tradition. Plus, DOMA actually changed federal marriage law by injecting a federal definition of marriage for the very first time (38-39).

DOMA cannot be justified by a desire to remain "cautious" in a hot social issue. Just because some given social issue is a hot topic of debate does not make continued discrimination palatable. Nor does it absolve the federal courts of their responsibility to weed out invidious discrimination (41).


If, then, under any standard, DOMA is unconstitutional, Golinski has powerful impact. First, while it cited Gill v. OPM and other DOMA cases, Golinski is the first to explicitly state that unequal state treatment on the basis of sexual orientation requires heightened scrutiny. For that, we have to thank the Obama Administration throwing its considerable influence behind the heightened scrutiny concept.

If affirmed by the Ninth Circuit (if this case is appealed, as I assume it will be), we will have federal appellate court precedent for a heightened standard of review that would call into question a whole host of antigay, discriminatory laws.

Second, even in Judge White's alternative rational basis holding, he made clear that discrimination that burdens a traditionally unpopular group requires more than the very low low rational basis standard that federal courts give to economic legislation. This is a direct attack on the legitimacy of Judge Randy Smith's dissent in Perry v. Brown, where the judge stated that only "rational speculation" on evidence of dubious accuracy is enough for rationality, though I cannot speculate as to whether Judge White intended as much.

Judge Smith's main point was that the citizens of California could have rationally believed that straight parents are better parents and that banning gay marriage encourages the "best" parenting model even if they were basing that good faith belief on admittedly incorrect or outdated or rejected science. Judge White not only rejected that absurdly low standard of review as outdated (no longer operative in a post-Romer and post-Lawrence world), but also irrelevant since all parties concede that gay parents are great parents.

Third, and related, Golinski is a stark reminder to conservatives in the House and traditionalists everywhere that their particular conception of morality cannot justify discrimination against gays as a matter of law.

And, finally, Judge White's reliance on other DOMA cases and previous Ninth Circuit precedent accepting the immutability of one's sexual orientation shows the importance of gay rights impact litigation in the medium to long run. A case here and there may result in a small victory in the result, but every step toward recognizing the essential equality of gay persons has an impact on future cases. Without previous cases in the Ninth Circuit and without Judge Joseph Tauro's decisions in Gill and Massachusetts, the Golinski decision would be just as correct, but on shakier ground as it goes up on appeal.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Posted Feb. 22,2012 at 7:49 PM EST by in Ari Ezra Waldman, DOMA, Gay Marriage, Law - Gay, LGBT, News | Permalink | Comments (54)

Towleroad Nominated for Best Gay Blog in's Readers' Choice Awards

AboutTowleroad was named a finalist in the 2012 Readers' Choice Awards for Best Gay Blog. We're thrilled to be nominated along with our friends Blabbeando, Joe.My.God, Kenneth in the 212, and Rod 2.0. Congrats to all. Voting closes March 21st, 2012 at midnight EST.

Posted Feb. 22,2012 at 7:33 PM EST by | Permalink | Comments (15)

Federal Court Rules DOMA Unconstitutional

A major ruling from U.S. District Court Judge Jeffrey White, a Bush appointee, who has ruled the Defense of Marriage Act (DOMA) unconstitutional for violating the Constitution's guarantee of equality.

Our legal expert Ari Ezra Waldman will have analysis coming up this evening. UPDATE: Read Ari's analysis HERE.

Politico's Josh Gerstein: Golinski

U.S. District Court Judge Jeffrey White, who sits in San Francisco and was appointed to the bench by President George W. Bush, issued the ruling Wednesday afternoon in a case involving federal judicial law clerk Karen Golinski's request for benefits for her female spouse. White said the stated goals of DOMA, passed in 1996 and signed by President Bill Clinton, could not pass muster under a so-called "heightened scrutiny" test or even a lower "rational basis" threshhold.

"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. "Tradition alone, however, cannot form an adequate justification for a law....The 'ancient lineage” of a classification does not render it legitimate....Instead, the government must have an interest separate and apart from the fact of tradition itself."

Check out the ruling here.

Reuters' Dan Levine adds:

White, who was appointed by President George W. Bush, a Republican, issued a permanent injunction preventing the government from further interfering with Golinski's ability to enroll her wife in the insurance program.

Chris Geidner at MetroWeekly pulls out some key pieces:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s 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.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

LambdalogoLambda Legal Staff Attorney Tara Borelli tweets: "This ruling spells doom for #DOMA."

Adds Borelli, in a press release:

"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."

And here's some extra background on the case from Lambda Legal:

Judge White's ruling is the latest victory in a battle that began in 2008, when Golinski, a 20-year employee of the U.S. Ninth Circuit Court of Appeals, sought to enroll her wife, Amy Cunninghis, in the employee health plan.  It is the first DOMA-related ruling since U.S. Attorney General Eric Holder announced that the Department of Justice had determined DOMA was unconstitutional and would no longer defend it, and the majority leadership of the U.S. House of Representatives hired outside counsel to defend the discriminatory statute.  A similar ruling holding DOMA unconstitutional in a separate case is on appeal in the 1st Circuit.

Golinski's struggle to enroll her spouse in the family health plan, a benefit routinely granted to her married heterosexual co-workers, travelled a torturous path, including two separate orders by Ninth Circuit Chief Judge Alex Kozinski directing that Golinski be allowed to enroll Cunninghis in the health plan, orders ignored by the U.S. Office of Personnel Management (OPM), citing DOMA.  In April 2011, Lambda Legal and Morrison & Foerster filed an amended complaint directly challenging the constitutionality of DOMA.  Judge White heard arguments on this amended complaint on December 16.

Said Golinski: "I am profoundly grateful for the thought and consideration that Judge White gave to my case. His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues.  This decision is a huge step toward equality."

Our legal expert Ari Ezra Waldman will have analysis coming up this evening. UPDATE: Read Ari's analysis HERE.

Posted Feb. 22,2012 at 5:53 PM EST by in DOMA, Karen Golinski, News | Permalink | Comments (22)

Former GOP Sen. Alan Simpson Tears into 'Homophobic' Santorum: VIDEO


Former Senator Alan Simpson (R-WY) tore into Rick Santorum, calling him "rigid and...homophobic" on Face to Face with Bob Schieffer, adding that he was alarmed at how Republicans are grabbing on to social issues:

"I am convinced that if you get into these social issues and just stay in there about abortion and homosexuality and even mental health they bring up, somehow they're going to take us all to Alaska and float us out in the Bering Sea or something."

Said Simpson of Santorum:

"He said, 'I want a constitutional amendment to ban gay marriage,' and they said, 'Well, what about the people who are already married?' And he said, 'Well, they would be nullified.' I mean what is, what's human, what's kind about that? We're all human beings, we all know or love somebody who's gay or lesbian so what the hell is that about? To me it's startling and borders on disgust."


Simpson made similar remarks last April, in an interview with Chris Matthews:

"We have homophobes on our party. That’s disgusting to me. We’re all human beings. We’re all God’s children. Now if they’re going to get off on that stuff—Santorum has said some cruel things—cruel, cruel things—about homosexuals. Ask him about it; see if he attributes the cruelness of his remarks years ago. Foul."

Posted Feb. 22,2012 at 5:45 PM EST by in 2012 Election, News, Republican Party, Rick Santorum | Permalink | Comments (23)

The Girl Scouts' Radical Cookie Agenda: VIDEO


Conan O'Brien realizes that Indiana GOP Rep. Bob Morris was right, and the Girl Scouts really do have a pro-gay, pro-abortion, feminist agenda.


Posted Feb. 22,2012 at 5:20 PM EST by in Conan O'Brien, Girl Scouts, News | Permalink | Comments (7)

News: Oklahoma, Totes Amazeballs, Andy Warhol, LOGO

RoadBill to reinstate 'DADT' in Oklahoma National Guard is shelved.

TotesamazeballsRoadKellogg's creates 'Totes Amazeballs' cereal for Twitter user.

RoadAdam Levine joins the contraception debate, endorses the withdrawal method.

RoadAction on "Don't Say Gay" bill delayed for amendment: "The House Education Committee put off discussion of a measure meant to curb discussions about homosexuality in elementary and middle school for a week so new language can be added specifically protecting some talks between students and their teachers, school nurses and guidance counselors."

RoadChace Crawford plays shirtless football, poses for paparazzi in Cabo San Lucas.

RoadMark Ronson talks about his work on the new Rufus Wainwright album. "It has a sort of really warm, mid '70s T Rex, Young Americans, Lauren Canyon kind of vibe to it."

RoadSerbia to open first shelter for gays: "Dusica Davidovic, an official in the southern city of Nis, about 120 miles (200 kilometers) south of Belgrade, says the city needs a "safe house" where gays from the area could seek protection. A 19-year-old Serbian man was kicked out of his home last year after he publicly said he was gay. Stefan Radovic says his family has cut all ties with him and he has nowhere to live."

RoadNicki Minaj goes Smurf blue.

NortonRoad10 members of Congress pose for the NOH8 Campaign.

RoadAmazing Race advance producer Jeff Rice poisoned in Uganda after attempted shakedown. "Details are sketchy, but the source said that after refusing to give in to the demands of local thugs, Rice and another facilitator ended up very sick with poisoning of some kind."

RoadLOGO announces 2012 slate of shows, veers away from gay-specific programming: “These new projects are anchored by stories that go deep into today’s world: Wanting to start a family is a universal desire, no matter who you love. Families in business together during a recession could be the ultimate drama. Pets are now surrogate children for a lot of people—who go to great length to celebrate them.” Check out the new offerings here.

RoadVIDEO: Justin Theroux breakdances for Ellen DeGeneres.

SolanosRoadS.C.U.M. Manifesto: Andy Warhol shooter annotated her own book in the NY Public Library.

RoadAndy Warhol died 25 years ago today.

RoadScientists discover steamy "water world" planet.

RoadUK serial killer of gay men dies in prison: "He made a New Year’s Resolution on January 1, 1993 to become a serial killer and over the next six months killed five men he met at the Colherne pub in Earls Court. It was reported at the time he went back to his victim’s homes, got them to agree to be tied up, tortured and suffocated them."

RoadOpening statements could begin today in Tyler Clementi roommate case: "Jury selection in 19-year-old Dharun Ravi's trial began Tuesday in New Brunswick, N.J., where Ravi faces charges of bias intimidation, in addition to invasion of privacy. Because the two bias intimidation charges are considered hate crimes, each carries a potential prison term of 10 years.  "

Posted Feb. 22,2012 at 3:50 PM EST by | Permalink | Comments (15)


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