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Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights.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

    First of all, we're not gays, we're gay people. Polyamory is not a sexual orientation. The sexual orientations are heterosexual, homosexual, and bisexual. That's it, there are only three. It sounds like your trying to confuse the issue with so many basic facts wrong. If polygamists want marriage rights, they can fight for them like we had to fight for them. But, it's not OUR fight. I don't see anyone clamoring for polygamy or polyandry, no national groups asking for it. If there are millions upon millions of disaffected polygamists out there, then they are entirely silent on the matter.

    Posted by: Johnson | Feb 22, 2012 11:04:02 PM

  2. Thank you Ari!! You da best!! I really like it that you read the comments and will answer most of our questions. You are my Fav. I don't have many questions since the ruling is very straightforward. Golinski is lik Witt vs the Air Force that case was DADT as it applied to Witt. Golinski vs OPM is as DOMA is applied to Golinski :)

    Posted by: StraightGrandmother | Feb 22, 2012 11:20:58 PM

  3. Strongly suspect Kris is a troll -- that's a tired amalgam of "slippery slope" propaganda mashed together with the flatly wrong assumption that most of us care one way or another what the poly folks do.

    Posted by: Shelly | Feb 22, 2012 11:37:14 PM

  4. YES! Another victory for justice. This past month or so has been incredible for gay rights. Sometimes it can seem so rare and slow...that is...progress on civil rights. I really feel like the flood gates are just moments from bursting open. In fact, they may have already.

    Posted by: anony6 | Feb 22, 2012 11:47:26 PM

  5. The last page of this Republican Judge's ruling is among the most interesting: He justifies his analysis (or, more properly, preempts the criticism he will receive as being an 'activist' judge) by quoting the confirmation testimony of Chief Justice Roberts that "Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat." That is a very significant statement clearly is meant for those Republicans who will claim this is an "activist" judge who is making up the rules, rather than applying the law. It's also clearly intended to get Chief Justice Roberts's attention.

    As I've said in some other posts on other articles, not a single judge (as far as I can tell) has specifically quoted and then rejected ex-Justice O'Connor's concurrence in Lawrence about the "reasons" that limit marriage to opposite sex partners. Interesting, even Judge White cites the O'Connor concurrence for points he likes in it about the rational basis test, but he doesn't explicity cite and then reject O'Connor's comments about traditional marriage.

    Posted by: MiddleoftheRoader | Feb 23, 2012 12:23:00 AM

  6. It really is quite amazing to see so many pro-equality decisions coming from Republican appointed Judges and Justices. I think it really helps to deflate arguments regarding "liberal activist judges."

    *Goodridge was authored by a GOP appointed Chief Justice (with 2 more GOP appointed Justices in the majority)

    *Kerrigan was authored by a GOP appointed Justice with 2 GOP appointed Justices and a GOP appointed Judge in the majority.

    *Varnum was authored by a GOP appointed Justice, with the GOP appointed Chief Justice joining the unanimous opinion.

    *Gill was authored by Tauro, a Nixon appointee.

    *Perry was authored by Walker, a George H.W. Bush appointee

    And now, Golinski being authored by a George W. Bush appointee.

    And of course, we had Romer & Lawrence authored by Justice Kennedy, a Ronald Reagan appointee. (Also, Chief Justice Deborah T. Poritz, wrote a forceful pro-marriage equality dissent in Lewis v. Harris)

    Posted by: PhineasFinch | Feb 23, 2012 1:13:04 AM

  7. @Another Ari-you and me both! As happy as I am for this win, it just means more waiting for the day I can sponsor my partner.

    Posted by: Contact1972 | Feb 23, 2012 4:42:58 AM

  8. (All day, all day) Watch them all fall down
    (All day, all day) Domino dancing
    (All day, all day) Watch them all fall down
    (All day, all day) Domino dancing

    Posted by: Oliver | Feb 23, 2012 5:37:19 AM

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    Posted by: | Feb 23, 2012 6:52:23 AM

  10. @kris: I'd like to see one single post where gay people have slandered polyamory in any way. While it's most likely a fringe group (which is not a judgement but rather an assumption)much like johnson states above, there seems to be a universal silence from it's advocates on the issue. I can't remember seeing any polyamory marriage headlines or cases in front of the court.

    I have no problem with what multiple groups want to do in the privacy of their own homes, but are some inherent problems with polyamory when it comes to various legal issues like:

    1. Property
    2. children
    3. wills
    4. taxes

    Traditionally, marriage between two parties fits a model that is easy to divide or combine fairly in all of these situations and cases (and more). However when the number grows to 3 or more, the problem of "what is fair to all" muddies the waters considerably(and is ultimately unsolvable), which is why the courts struck down polygamy decades ago. Polyamorous marriage is very much akin to polygamy and has the same inherent problems when it comes to legal matters as there are too many parties involved to "fairly" hand out any judgements which would not unfairly treat at least one member of said group.

    Posted by: johnny | Feb 23, 2012 7:20:51 AM

  11. Great news! Let's keep going with victories for the rest of the year too.

    Posted by: Peter | Feb 23, 2012 8:59:49 AM

  12. Since the Ninth Circuit has already held that heightened scrutiny applies to LGBT people, and since Oregon has an "everything but marriage" state in the Ninth Circuit, it seems like the time has come for a court challenge to our mini-DOMA constitutional amendment that was passed in 2004. Basic Rights Oregon - are you listening?

    Posted by: BZ | Feb 23, 2012 9:11:28 AM

  13. Ari -
    One question that keeps cropping up in my mind regards what happens if and when these judgements are affirmed. If DOMA Sec 3, arguably the important section of DOMA, is unconstitutional, what does that mean for federal rights granted to a couple that is married in a state with marriage equality, but which live in a state without it? Would the federal government be forced to recognize the marriage, while the state would be allowed to ignore it?

    Posted by: madbiologist | Feb 23, 2012 9:36:56 AM

  14. @madbiologist: thanks for your question. unfortunately, if you live in a state that doesnt recognize your out-of-state marriage, then you are technically not married under state law. you cant file your state taxes as married. nor do you receive any state benefits of being married. DOMA section 3 says that regardless of what you are under state law, federal law says no to same-sex marriage. you are technically not married under state law because you live in a state without ssm and without recognition of out of state marriages. so, DOMA wouldnt change anything.

    Posted by: Ari Ezra Waldman | Feb 23, 2012 9:52:24 AM

  15. It would have been nicer if DOMA had been repealed during the first two years of the Obama admin when he had majorities in both houses rather than this drip-drip-drip of slow progress.

    Posted by: anon | Feb 23, 2012 10:58:06 AM

  16. Oh, no! Another activist judge appointed by George W Bush!

    Posted by: mike/ | Feb 23, 2012 11:43:57 AM

  17. Ari,
    How long do you think it will now take for couples directly hindered by DOMA to be impacted? (In my specific case, immigration equality).
    I know it's an unanswerable question but would love to hear your thoughts.

    Posted by: another Ari | Feb 23, 2012 12:28:35 PM

  18. @ari. great name! DOMA is still on the books and unless it is repealed in Congress (unlikely with a Republican House buttressed by redistricting), we would have to wait for the law to be declared unconstitutional by the Supreme Court and then an executive decision to process gay marriages like heterosexual marriages (the latter is more a formality, but government procedures do take time). The earliest this case could get to the Supreme Court, if appealed, would be late 2013, if had to guess, pushing the decision to a few months after that, so early 2014. dont forget, this case is just at the district court level. even then, the Supreme Court could simply quibble with the summary judgment decision and instead of saying yes or no to DOMA, just send it back for a trial. then were back to the beginning. possible, though doubtful, given all the DOMA challenges winding their way through the courts.

    Posted by: Ari Ezra Waldman | Feb 23, 2012 12:33:51 PM

  19. Re madbiologist: I interpreted the question as more like this hypothetical: Let's say DOMA section 3 is ruled unconstitutional. A same sex couple was married in California, or Massachusetts, or some other marriage equality state. Their marriage would be recognized under both state and federal law. That couple then moves to Utah or some other state with no recognition. Since Utah doesn't consider them married, does the federal government now consider them unmarried again? Or does the marriage from another state "carry over"?

    Posted by: Larry | Feb 23, 2012 12:36:34 PM

  20. @larry: yes. you are no longer married under state law when you move to a state that doesnt recognize your alien marriage. you cant file your state taxes jointly, you dont have state survivorship rights if youre a state employees, etc. so, as to the federal government, youre not married. as soon as you move back to mass or california or iowa or any of the states that do recognize as valid your out of state same-sex marriage, then (assuming there is no DOMA), the federal government recognizes your marriage for federal law.

    Posted by: Ari Ezra Waldman | Feb 23, 2012 12:43:19 PM

  21. Isn't that assuming that there is only no Section 3 of DOMA? If DOMA is ruled unconstitutional as a whole, the exception to the Full Faith & Credit Clause goes with it, no?

    I realize only section 3 is subject to the current case, but are any of the other DOMA cases concerned with the other sections?

    Posted by: Zlick | Feb 23, 2012 1:18:15 PM

  22. @zlick: no. the challenges only apply to DOMA section 3 and the law is severable. plus -- and this is a longer discussion -- many would say that section 2 is not unconstitutional, just bad policy.

    Posted by: Ari Ezra Waldman | Feb 23, 2012 1:27:16 PM

  23. I am not sure that the answer to Larry's question is correct. In many states, marriages between opposite sex partners under 18 are illegal in certain situations, but they are not legal in other states; in some states, first cousins can marry, but such marriages are not valid in other states; in some states, common law marriages are legal but they are not legal in most states.

    When a couple that is legally married in one state then moves to another state where their marriage is supposedly not legal, MAYBE that allows the other state to deny them some rights accorded married partners (e.g., joint tax filing, survivorship & estate rights, etc). BUT IT IS HARD TO BELIEVE THAT THE FEDERAL GOVERNMENT COULD NO LONGER CONSIDER THE COUPLE TO BE MARRIED FOR PURPOSES OF FEDERAL LAW -- can someone cite a court case where that happened? For example, if first cousins are married in Mississippi and one of them is receiving federal health care coverage because the other is a federal employee, then if this couple moves to another state that does not allow first cousins to marry, would the federal government really cut-off the health care coverage of the non-federal employee because s/he is no longer considered to be a 'spouse' of the federal employee? That sounds like a ridiculous result. Similar questions regarding Social Security, federal disability and other benefits.

    So, I would not jump to the conclusion that when DOMA disappears (by court decision or by Congressional action), this means that same-sex married partners will lose all federal rights as married partners if they move from one state to another. In fact, if the feds tried to do that, it could create other constitutional questions (like taking property or liberty without due process). I'd like to see some court cases that address this point before agreeing that same-sex married partners who move from Massachusetts to Rhode Island will lose all federal rights as a married couple.

    Posted by: MiddleoftheRoader | Feb 23, 2012 1:31:51 PM

  24. We were married in Massachusetts but reside in Florida. Does this mean that once Section 3 of DOMA no longer an issue then my US spouse can sponsor a green card for me since this is under federal agency? Or would we have to wait until Florida recognizes same sex marriages from other states? Also taking in consideration other DOMA cases in US courts, what's the earliest time period for this to happen? Thanks!

    Posted by: RESOFFLA | Feb 23, 2012 3:38:07 PM

  25. “[T]he Ninth Circuit in Witt v. Department of Air Force merely found, in the
    context of military policy where judicial deference “is at its apogee,” that the military’s policy
    of “Don’t Ask Don’t Tell” would fail even rational basis review.
    op. at 18, citing Witt, 527 F.3d 806 at821 (9th Cir. 2008)


    We next turn to Major Witt’s Equal Protection Clause claim. She argues that DADT violates equal protection because the Air Force has a mandatory rule discharging those who engage in homosexual activities but not those “whose presence may also cause discomfort among other service members,” such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing “whether Bowers itself ha[d] continuing validity”). We thus affirm the district court’s dismissal of Major Witt’s equal protection claims.

    Witt, 527 F.3d at 821

    Posted by: Michael Ejercito | Feb 23, 2012 5:20:26 PM

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