Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT | News

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Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights.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

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  1. There's a nice passage where White is reviewing some of the BLAG's "evidence" that different-sex parenting is superior to same-sex parenting. One of BLAG's sources was an article is Slate. White writes: "This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular
    online magazine without peer review."


    Posted by: Bingo | Feb 22, 2012 8:01:04 PM

  2. Thanks Ari! Enlightening as always. Makes me hopeful that the day in which I'll be able to sponsor my husband for a green card is getting closer.

    Posted by: another Ari | Feb 22, 2012 8:03:06 PM

  3. When will we finally see an end to the odious enforcement of DOMA by the federal government? When will bi-national married couples be able to stop cowering in fear of their legal marriages being torn asunder and seeing their legal spouses deported? When will married citizens of the several states be able to file joint tax returns?
    When will DOMA, in practicality, be dead?

    I am asking WHEN?

    Posted by: Johnson | Feb 22, 2012 8:14:16 PM

  4. Good Old Ari, our dependable propagandist for Obama, Inc. Why do I say that? Because any OBJECTIVE "legal analysis" would not choose to leave out two years of previous history of this case when a CIRCUIT Court judge ruled that DOMA does NOT even apply in this case and ordered Obama, Inc., to let her add her wife to her insurance but for those two year Obama, Inc., DEFIED the judge until they suddenly decided last year they were now for something they'd fought against before. . Did anything about DOMA change during that time? No. Did anything about the Constitution change during that time? No. Applause, applause for finally buying in, but it's fair to ask what political homophobia was behind their taking so long to do the right thing until apparently secret polling told them it was okay. Remember these FACTS when being drowned in Kool Aid from Ari or anyone else. [And, NO, this doesn't mean we should support a Repug for president instead.]

    Posted by: Michael Bedwell | Feb 22, 2012 8:16:25 PM

  5. It was striking to me how this court did not stop at rational basis review, when it could have (noting, in detail, why DOMA sec. 3 does not pass muster at even that standard), but goes on to find gays and lesbians entitled to a standard of heightened scrutiny, which it then states in detail why DOMA sec. 3 fails under that standard as well.

    Ari, why do you think such a different tack was taken by Judge White than that taken by the Ninth Circuit panel recently in Perry (and, seemingly, by most courts in not reaching beyond the standard necessary to resolve the issue before them).

    I'm so heartened by the application of heightened scrutiny here - but did Judge White err, or go beyond typical standards of jurisprudence, in applying heightened scrutiny when he has determined the matter fails at even the rational basis standard?

    Posted by: Zlick | Feb 22, 2012 8:17:00 PM

  6. Thanks Ari for this analysis. . .a very interesting read and impressive ruling. One statement and question (perhaps naive, on my part, but one I've pondered lately). Many of the latest victories for the LGBT community have come from the Ninth Circuit, but not from other circuits in the Midwest and Deep South. What is the implication in such rulings if only the Ninth Circuit and perhaps one other Circuit rule in such matters? Do they influence other, more hostile, Circuits, or could a patchwork ultimately work against us as courts seek resolution at the ultimate level of the US Supreme Court? Just curious what you think about this train of thought.

    Posted by: Keith | Feb 22, 2012 8:17:00 PM

  7. Hoping and praying for DOMA 's end....I want to sponsor my girlfriend the distance is killing us

    Posted by: Marie | Feb 22, 2012 8:20:03 PM

  8. Another amazing analysis from Ari! You're quite an inspiration to a 1L!

    Posted by: Joe Gallagher | Feb 22, 2012 8:30:48 PM

  9. Great news! Thanks to DOMA legally married same-sex military spouses are denied health insurance, commissary and other base privileges, housing allowance, etc. as compared with their opposite-sex married counterparts. For those interested – has been providing a supportive environment for friending, sharing and networking between Gay active military, vets and supporters since December, 2010.

    Posted by: Out Military | Feb 22, 2012 8:31:00 PM

  10. @keith: thanks for reading! i wouldnt characterize gay rights victories coming out of the 9th circuit, dont forget Gill came from the 1st. also, over the years, we have had great victories from all over (and great losses from all over). it does suggest that the coasts are farther along in tolerance and acceptance than the south, but we already knew that. plus, there are a number of cases making their way through the federal courts in the 7th (midwest/plains) and even the conservative 4th.

    Posted by: Ari Ezra Waldman | Feb 22, 2012 8:51:04 PM

  11. @keith: also, dont forget that many of these pro gay decisions come from republican appointees. that has much to do with the make up of the federal courts over the last 30 years (20 of the years since 1980 have been republican presidents).

    Posted by: Ari Ezra Waldman | Feb 22, 2012 8:52:18 PM

  12. Question for Ari:

    It looks like this ruling only applies to the plaintiff. Do you think the 9th circuit would likewise limit it, or would a favorable ruling from them apply it to all couples in the 9th circuit who are legally married under their state law?

    Posted by: Matt N | Feb 22, 2012 8:54:32 PM

  13. @mattn: in the sense only that golinski is an as applied challenge to DOMA from golinski, it applies to her. that only means that its not a facial challenge, like the challenge to DADT from log cabin. still, the reasoning applies to any challenge to DOMA. it just matters for how the case functions.

    Posted by: Ari Ezra Waldman | Feb 22, 2012 9:08:21 PM

  14. Terrific analysis Ari. Exciting to read!
    Thank you SO much.

    Posted by: Ex_Brit | Feb 22, 2012 9:19:04 PM

  15. Ari, correct me please if I'm wrong: This is the first case defended by Clement, right? His office prepared the papers and the made the arguments (though there were no oral arguments, witnesses, etc.), right?

    Posted by: BobN | Feb 22, 2012 9:20:10 PM

  16. @bobn: with a decision, yes. but mr. clement and bancroft llp have submitted motions/briefing in other case.

    Posted by: Ari Ezra Waldman | Feb 22, 2012 9:27:16 PM

  17. Love this. Thanks Ari!

    I recommend everyone go read the actual ruling! It's quite fun! He just smacks down the opposition and even gets in a shout-out to peer reviewed articles by scholars, as opposed to, say blog posts by non-scholars, like the opposition loves to cite!

    Posted by: KevinVT | Feb 22, 2012 9:27:58 PM

  18. "@bobn: with a decision, yes. but mr. clement and bancroft llp have submitted motions/briefing in other case."

    So no motions/briefing in this case?

    Me confused.

    Posted by: BobN | Feb 22, 2012 9:33:09 PM

  19. Reading an Ari assessment gives me a semi.
    He is one of the best writers on LGBT federal law out there. I said it before and I'll say it again: Ari is the lovechild of Dalia Lithwick and Nina Totenberg with Linda Greenhouse as the sperm donor.

    Posted by: bravo | Feb 22, 2012 9:36:13 PM

  20. @bobn: this was the first case he was involved in that has a decision. he submitted briefs/motions in this and in other cases, but the other cases are still pending or in progress.

    Posted by: Ari Ezra Waldman | Feb 22, 2012 9:36:29 PM

  21. @bravo: colorful, a little naughty and disturbing, but THANK YOU!

    Posted by: Ari Ezra Waldman | Feb 22, 2012 9:39:19 PM

  22. Thanks, Ari, that's what I thought. I assume his arguments in the other cases were similar (if not identical) so far.

    Sad thing is, he'll probably get another big check to fund the appeal.

    Posted by: BobN | Feb 22, 2012 9:40:26 PM

  23. To answer my own question, I guess that district court judges are perfectly free to rule on the basis of multiple standards; it's appellate courts that typically rule only on the narrowest available.

    I don't recall whether Judge Walker went beyond rational basis in the Perry case. But it's wonderful that Judge Smith not only went there, but said gays and lesbians qualify under all 4 prongs of the heightened scrutiny test, not just the two that have been found most important. I believe that's called a Slam Dunk. Yay!

    Posted by: Zlick | Feb 22, 2012 9:41:24 PM

  24. @zlick: no, he did not violate the rule that federal judges must only decide the issue before them. the standard of review WAS an issue before the court because lambda legal and DOJ said heightened and House Republicans said rational basis. the decision on heightened scrutiny was taken here (and not in perry) because that particular issue had to be resolved here. it did not in perry... it wasnt even fully briefed in perry.

    Posted by: Ari Ezra Waldman | Feb 22, 2012 9:45:01 PM

  25. I don't see why gays oppose polyamory - that is, multiple partner marriage.

    Polyamory is a natural sexual orientation just like being gay. Polyamorist families love each other and want the same right to marry as do gays and straights. How do polyamorist marriages hurt YOUR gay marriage? They don't. Why are gays so prejudiced against loving polyamorist families? After all, there is no more abuse in such families than in any other sort of families. Any group of two or more people who want to marry should be able to, Ari, don't you think? I also don't understand why gays are against bisexual marriage - a person who can marry one of each gender. I think gays are prejudiced against bisexual marriage.

    Posted by: Kris | Feb 22, 2012 10:41:04 PM

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