Breaking News

New protection for gays: DOMA struck down (CORRECTION)

(CORRECTION:  Yesterday’s decision was not the first to deal with DOMA’s constitutionality since the Obama Administration stopped defending it, and the House GOP leadership took on the defense.  U.S. District Judge Stephen V. Wilson of Los Angeles on September 28 rejected a constitutional challenge to DOMA,  finding that Congress’s power to treat same-sex marriage differently had been settled within the Ninth Circuit by a pre-DOMA decision by that Court, Adams v. Howerton, in 1982, at least in the immigration context.  Judge Wilson ruled in a case involving a married same-sex couple seeking designation of immediate relative status for the Indonesian native spouse of a citizen, Lui v. Holder (docket 11-1267, Central District-California).  The House Republican group defended DOMA in that proceeding.  The blog thanks two readers for the heads-up about this decision, and the blog regrets its omission.)


Giving gays and lesbians a higher level of constitutional protection against discrimination, a federal judge in San Francisco on Wednesday struck down the federal Defense of Marriage Act’s ban on federal benefits as it applied to a same-sex couple who are legally married in California.   The 43-page ruling by U.S. District Judge Jeffrey S. White is the first decision by a federal court to reject the constitutional defense of DOMA by the Republican leaders of the House of Representatives.  It also is the first federal court ruling since the Obama Administration switched and began refusing to defend the law’s validity.

The ruling came on the same day that the Ninth Circuit Court told two same-sex couples in California to reply to a plea by backers of Proposition 8 seeking further review in the Circuit Court of the constitutionality of that voter-approved ban on gay marriages. (See this post, updated today.)  The Proposition 8 ban does not apply to the couple involved in Judge White’s ruling, because they were married during a brief period of time when such marriages were allowed by the state Supreme Court.

Judge White’s ruling was restricted to the case of an individual, federal court staff attorney Karen Golinski, so that she could have her wife covered by Golinski’s family health insurance plan.  The coverage had been denied by federal officials, relying on DOMA.  The decision did not strike down as written (“facially”) DOMA’s Section 3, which defines marriage under any federal law as meaning only a man and a woman legally married as husband and wife.   The law dates to 1996.   Judge White said Congress passed the law mainly in response to a Hawaii Supreme Court ruling in 1993 indicating that same-sex couples could be married, under Hawaii’s constitution.  The lawmakers, the judge concluded, wanted to cut off the spread of gay marriage across the country.  (Hawaii does not now allow such marriages.)

Seven states now allow same-sex couples to marry.  Maryland’s legislature is currently considering whether to join that list.  The New Jersey legislature recently agreed to allow such marriages, but Gov. Chris Christie vetoed that measure, and seeks to have the issue decided by the state’s voters.   The status of the law in California depends, for now, on the outcome of the Ninth Circuit case involving Proposition 8.

In passing DOMA, Congress moved to allow states that wished to do so the authority to refuse to recognize legal marriages performed in other states   That was provided in Section 2.  That was not at issue before Judge White in the case of Golinski v. U.S. Office of Personnel Management (District Court docket 10-257).  The new decision applied to the ban on benefits, in the law’s Section 3.

The judge ruled that Golinski, who is married to Amy Cunninghis, her partner of more than 20 years, is entitled to equal treatment with an opposite-sex marriage partner working for the government to include the marital spouse in the employee’s family coverage by the federal employees health benefit program.   Golinski’s health plan already covers the couple’s minor child.

Under DOMA’s Section 3, Judge White noted, gay and lesbian individuals who are legally married are treated differently from married opposite-sex couples, and the difference is based on sexual orientation.  Golinski challenged that on both the claim of discrimination based on her sexual identity and also bias against her because of her gender as a woman.  The judge confined his ruling to her rights against bias based on her sexual orientation, finding that she has a right to legal equality under the Constitution’s Fifth Amendment Due Process Clause (which has long been understood as a guarantee of legal equality parallel to that guaranteed against state discrimination under the Fourteenth Amendment).

The decision does not declare that gays and lesbians have a constitutional right to get married, since Golinski is already legally married to Cunninghis, and the judge said that legal fact is not altered simply because DOMA fails to recognize that marriage for purposes of federal benefits.

In addressing the legal equality issue as it applies to Golinski, Judge White concluded that he was not bound by a Ninth Circuit ruling in 1990, allowing differing treatment even if it was justified only by a “rational basis” — the easiest constitutional test there is.  That ruling came in the case of High Tech Gays v. Defense Industrial Security Clearance Office.  That ruling’s strength, the judge said, has been eroded by later court rulings on gay rights, and it is now “outdated.”  High Tech Gays, the opinion added, was based primarily upon a 1986 Supreme Court ruling allowing states to make it a crime for gays to engage in homosexual conduct in private  That decision, Bowers v. Hardwick, was overruled by the Supreme Court in the 2003 decision in Lawrence v. Texas.   The Ninth Circuit’s 1990 ruling cannot stand in the wake of that overruling, Judge White ruled.

As of now, the judge said, neither the Supreme Court nor the Ninth Circuit has issued a binding ruling on what constitutional test to apply to laws that treat people differently, based on sexual orientation.  And, he said, no federal appeals court has “meaningfully examined” what that standard should be in the wake of the change in gay rights jurisprudence.  The judge then went forward and concluded that a higher level than rational basis is the proper standard.

This heightened standard, the judge found, was justified by the history of discrimination against gays and lesbians, by the facts that sexual orientation has nothing to do with a person’s ability to contribute to society, that sexual orientation has been shown in scientific studies to be not a matter of choice but an “immutable characteristic” or at least “highly resistant to change,”  and that sexual orientation is an “integral part of one’s identity,” by the minority status of gays and lesbians, and by the fact that it is merely speculation whether gays and lesbians have political power sufficient to allow them to protect their identities from discrimination.

The judge noted that heightened scrutiny, as applied in this case, requires proof that a law treating people differently based on a personal characteristic is “substantially related to an important governmental objective.”  He found that lacking, since he concluded that DOMA was enacted primarily to reflect Congress’s moral disapproval of homosexuality, with claims such as the argument that “the moral and spiritual survival of the nation” was threatened by the gay “lifestyle.”

Addressing the House GOP leadership’s arguments of the government interest they found to be supported by DOMA, Judge White rejected each one: steering child-bearing into traditional marriage, nurturing the traditional institution of opposite-sex marriage, defending moral traditions, and saving government resources.   Having found no valid justification, he ruled that the ban on benefits was unconstitutional as applied to Golinski.    As a back-up argument for the decision, the judge also concluded that, if he were to apply only rational basis analysis, DOMA’s ban would still be invalid as applied to Golinski; he rejected a series of alternative rationales the GOP leaders had put forth under the rational basis standard.

The judge thus ordered the government to stop interfering with Golinski’s enrollment of her wife in family coverage under her health insurance.   The decision, of course, is subject to appeal to the Ninth Circuit Court, at least by the House GOP leadership.   The Obama Administration is no longer defending DOMA, having concluded that it is unconstitutional.







Recommended Citation: Lyle Denniston, New protection for gays: DOMA struck down (CORRECTION), SCOTUSblog (Feb. 22, 2012, 8:08 PM),