Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for February, 2012

House Republican Leaders Appeal DOMA Ruling

Jim Burroway

February 24th, 2012

As expected, Congressional Republican leaders have appealed Wednesday’s ruling striking down Section 3 of the Defense of Marriage Act as unconstitutional to the Ninth Circuit Court of Appeals. The Bipartisan Legal Advisory Group (BLAG), under the direction of House Speaker John Boehner, stepped in to defend DOMA when the Obama administration’s Justice Department found that DOMA was unconstitutional. Wednesday, U.S. District Court Judge Jeffrey S. White, a George W. Bush appointee, agreed, saying that there is no rational basis for the provision which bars the federal government from granting employment benefits to legally married spouses of gay employees.

Chris Geidner at Metro Weekly notices that the appeal filing includes this statement: “The Democratic Leader and the Democratic Whip decline to support the filing of this notice of appeal.”

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.

Judge in Golinski asks uncomfortable questions for those who favor discrimination

Timothy Kincaid

December 16th, 2011

Today Justice Jeffrey White heard testimony as to whether the federal Defense of Marriage Act (DOMA) was in violation of the US Constitution when it was applied to deny spousal benefits to Karen Golinski, a legally married federal employee. In advance, White, a George W. Bush appointee, provided a list of questions that he wanted addressed. It can’t have been a happy day for Paul Clement when he saw them.

The list of ten questions began with:

1. The passage of Section 3 of the Defense of Marriage Act (“DOMA”) marks a unique departure from the recognition the federal government historically has afforded to State marital status determinations.

It quickly trotted on to such inquiries as “What is the authority for the position that only the right to opposite-sex marriage is fundamental as opposed to the right to marriage generally?” and “How does BLAG distinguish the line of authority treating classifications based on religious affiliation as a suspect class from classifications based on sexual orientation?” and “How does BLAG’s argument about the tradition of heterosexual marriage differ from the miscegenation context?”

And surely when he came to number 9 Clementi must have cringed:

9. To the extent the Court decides the issues presented on the motion for summary judgment…

This does not mean that White will rule in Golinski’s favor or that the ruling will apply broadly should he do so. But it does suggest that White has no concerns about the arguments made by Golinski’s counsel but is finding the arguments presented by DOMA’s defense to rely on assumptions that White was not willing to make.

Adding sway to Golincki’s case, the head of the civil division of the Department of Justice showed up to argue in her behalf. This is but the second time that Assistant Attorney General Tony West has personally appeared in court to represent the Government and his appearance signaled the significance with which the Obama Administration has begun to take the issue of marriage equality.

Of course one can never tell how a judge will make their determination. But, at this point, things look encouraging.