Federal Court Strikes Down Section 3 of DOMA

Jim Burroway

February 22nd, 2012

Chris Geidner at Metro Weekly has the breaking news that Federal District Court Judge Jeffrey S. White found that Section three of the Defense of Marriage Act is unconstitutional. Karen Golinski is suing the Office of Personnel Management for denying her request for equal health insurance benefits for her wife:

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies — as urged by the DOJ — and noting that it might not even pass rational basis — the lowest — legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

This finding exceeds the Justice Department’s determination that DOMA, section 3, which prohibits the federal government from recognizing fully-legal same-sex marriages, requires heightened scrutiny and is unconstitutional at that level. Because of the Justice Department’s finding, the Obama administration has stopped defending Section 3 in court. The Bipartisan Legal Advisory Group (BLAG), led by the Republican leadership in the House of Representatives, is defending DOMA in the case.

Judge White, a Bush administration appointee, cited a 2001 US Supreme Court discrimination case in finding that DOMA unconstitutionally discriminates against same-sex 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.

BLAG has the option of appealing the decision to the Ninth Circuit Court of Appeals. Two other similar cases in Massachusetts resulted in DOMA’s Section 3 being declared unconstitutional there. Those cases are now on appeal with the First Circuit Court of Appeals.

Ben In Oakland

February 22nd, 2012

So am I reading this correctly?

The multimillion dollar House defense of DOMA, starring Paul Clement as a $500 rent-a-gent, has not only failed, but made the case even worse by implementing an even higher level of scrutiny?

I sure hope so, because I am currently smiling mit schadenfreude.

TN

February 22nd, 2012

Isn’t rational basis better than strict scrutiny in some cases? If a law fails rational basis, that means it’s the worst kind of law, right? But if it fails strict or heightened scrutiny, it means it *could* be constitutional, but because of the nature of the right it infringes on it has to be thrown out. Is that right? So a law that infringes on religious freedom would have to be held up to strict scrutiny, which is good in that case. What is the point of these different levels?

Tony P

February 22nd, 2012

Anti-gay laws are dying the death of a thousand paper cuts right now. But one thing that is happening is that the preponderance of defeats of DOMA mean it should be hitting the USSC any time now.

Timothy Kincaid

February 22nd, 2012

And as the latest proof that the gods have a wicked sense of humor…

White was appointed to the Federal Bench by… wait for it… DUBYA!!

Marriage has been, due to the whims of fate, primarily decided by Republican Judges appointed by Republican Presidents who looked at the constitution and couldn’t find that gosh darn asterisk that excluded gay people (drat that strict adherence to the wording). And so when I hear Republican nominees tell their audiences that they will appoint judges that uphold the constitution and not read some liberal social agenda into it, I just nod and giggle.

Timothy Kincaid

February 22nd, 2012

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.

yes, yes, yes, yes, and yes.

I love this. Not only is it true but we would be better served by recognizing it as such.

Too often we equate opposition to same-sex marriage with hatred. While this may feed our need to dislike and discredit the opposition, it changes few minds.

“You’re a hater” is not very effective in convincing someone – who doesn’t hate you – that they should rethink this issue. But “you haven’t given careful, rational reflection to the issue and are accepting instead a pre-judged conclusion” may well encourage a change of position.

Timothy Kincaid

February 22nd, 2012

TN, kinda.

Actually this is a two-fer for us.

Heightened scrutiny means that the target of the law is a class of people for which it is legally assumed that targeting them is going to always be unconstitutional. You don’t have to look at every single law that singles out black people for different treatment to see if this one in particular is unconstitutional because it’s a given. Police wont enforce a racist law; they already know it won’t fly.

For gay people, it’s been a mixed bag. Without heightened scrutiny, every new anti-gay law that is presented is assumed to be just fine until it is challenged in court. Even blatantly unconstitutional laws like Tennessee’s “can’t say gay” law is presumed legal until proven otherwise.

Judge White said the same thing that Judge Walker said: gay people deserve the presumptions of heightened scrutiny, but this law here wouldn’t pass the ‘oh, gee, make up anything as long as it’s not completely delusional’ rational basis test.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

Today's Agenda Is Brought To You By...

Today In History, 2006: NARTH Official Recommends Peer Shaming for Gender-Variant Elementary School Children

Today In History, 2007: Sen. Larry Craig's Airport Mens Room Bust Revealed

Born On This Day, 1961: Tom Ford

Today's Agenda Is Brought To You By...

Emphasis Mine

Today In History, 1954: Miami Mayor Calls for Anti-Gay Crackdown

Today In History, 1995: GOP Presidential Candidate Sen. Bob Dole Returns Donation from Log Cabin Republicans

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.