PLAIN AND SIMPLE; IT'S UNCONSTITUTIONAL!

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Parts of The Domestic of Marriage Act has been declared UNCONSTITUTIONAL!

Another victory for equality. Jeffery White of the District Court for the Northern District of California a Bush appointee ruled that the Defense of Marriage Act (DOMA) violates the Constitution’s equal protection clause in a case brought by Karen Golinski. Golinski, represented by Lambda Legal, “was denied spousal health benefits by her employer, the U.S. Ninth Circuit Court of Appeals in San Francisco.” White was appointed to the court by President George W. Bush in 2002. The decision represents a serious setback for House Speaker John Boehner (R-OH), whose Bipartisan Legal Advisory Group (BLAG) defended DOMA after the Obama administration announced it would no longer defend the law. Read the full opinion here.

The Court has ruled that considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny for all four factors that determine such scrutiny:

HISTORY OF DISCRIMINATION: The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.

ABILITY TO CONTRIBUTE TO SOCIETY: Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society.

IMMUTABILITY: Regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchangeable, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

POLITICAL POWERLESSNESS: The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power… Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority.

The Court rebuked Congress for BLAG’s argument that caution should be taken with issues that can be socially divisive:

Ari Ezra Waldaman breaks it down;

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-Bowers and 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, they could not possible be members of a protected class. But, Bowers was long ago overturned by Lawrence v. Texas, 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. But a law that does not change state marriage laws could not benefit traditional marriage. After all, 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).

Implications
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 standard 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, 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.

Here, too, this Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law..