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Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights.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