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News and commentary about the anti-gay lobbyFebruary 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.
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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.
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