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Breaking: California district court rules DOMA unconstitutional

DOMA trials Golinski

By Jacob Combs

Today marked another major milestone in the path to getting rid of the Defense of Marriage Act, as Judge Jeffrey White of the Northern District of California struck down DOMA in the case Golinski v. OPM.

Judge White, a Bush appointee, determined that DOMA should be considered under the more critical heightened scrutiny measure (as the Justice Department recommended last year), but also noted that several courts have found that the provision would not even pass the more deferential rational basis test.  In his decision, Judge White wrote:

The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

Today’s decision is significant because it joins Judge Joseph Tauro’s joint decisions in the 2010 cases Massachusetts v. HHS and Gill v. OPM striking down DOMA in Massachusetts district court.  That case is now on appeal in the First Circuit, and it is likely that today’s decision will be appealed in the Ninth Circuit.

These DOMA challenges can only mean good news for the Prop 8 case, especially now that that case may be delayed if considered for rehearing in the Ninth Circuit.  If Judge Tauro’s decision is upheld on appeal, (especially considering the fact that Judge White’s decision could also be making its way through the appeals process), it seems likely that  the Supreme Court would take the case.  In striking down DOMA, the Supreme Court would not have to make any deliberation on an inherent constitutional right to marriage equality, and could rely on a states’ rights argument that might appeal to the court’s more conservative wing.  A Supreme Court opinion striking down DOMA would almost certainly be referenced in a defense of Judge Walker’s Prop 8 decision, not to mention the fact that it would make a win in the Prop 8 case even more consequential, since gay and lesbian couples in California would be able to enjoy full federal marriage rights.

In an email to P8TT, Jon Davidson, Legal Director of Lambda Legal, had this to say about today’s decision:

I would say that between the Ninth Circuit’s ruling that Prop 8 is unconstitutional, the ruling we obtained yesterday reinstating our New Jersey marriage case, the passage of marriage equality in Washington, the passage of a marriage equality bill through the legislature in New Jersey, and the passage of a marriage equality bill through the Maryland House, this latest victory over DOMA shows that we have passed the tipping point.  February 2012 will go down in history as the month marriage equality became unstoppable.

You can read the court’s judgment here, and Judge White’s full opinion below.

[scribd id=82491957 key=key-1b9f9ianb8906da3e03r mode=list]


  • 1. ReneCito  |  February 22, 2012 at 4:06 pm

    I wet my pantalones :-) super happy now

  • 2. bjasonecf  |  February 22, 2012 at 4:06 pm

    Long live heightened scrutiny!!!

  • 3. chiefscribe  |  February 22, 2012 at 4:11 pm

    " If Judge Tauro’s decision is upheld on appeal, it would essentially cause a circuit split"

    What's the split? Has another circuit ruled DOMA constitutional?

  • 4. Sam_Handwich  |  February 22, 2012 at 4:13 pm

    my favs:

    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.

    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.

    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.

  • 5. MightyAcorn  |  February 22, 2012 at 4:20 pm

    Me. So. Happy. Even my kitteh is happy, and she had a shampoo bath today.

  • 6. rick jacobs  |  February 22, 2012 at 4:23 pm

    We need to get this language before Sen. Reed of RI, Sen. Casey of PA and others who enjoy sitting on their fence while lives pass them by.

  • 7. John_B_in_DC  |  February 22, 2012 at 4:28 pm

    And NOM will use this decision to hit up their supporters for more money in 3… 2… 1…

  • 8. Steve  |  February 22, 2012 at 4:49 pm

    You forgot about Hawaii…

  • 9. Steve  |  February 22, 2012 at 4:51 pm

    I like how how he shot down every single argument Congress and then BLAG made. Both under rational basis AND heightened scrutiny

    Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

    I can just picture him sitting in his chambers and failing to come up with some decent justification.

  • 10. Gregory in SLC  |  February 22, 2012 at 5:02 pm

    I've been in a bit of funk after Christie's senseless NJ veto…this news is most welcome! End of DOMA could literally be a lifesaver for my husband and the beginning of hope!

  • 11. Breaking News: California&hellip  |  February 22, 2012 at 5:05 pm

    […] the full story over at: Prop 8 Trial Tracker This entry was posted in Courage Campaign, Current Events, Gay Marriage, LGBT, News, Prop 8 and […]

  • 12. Bob  |  February 22, 2012 at 5:14 pm

    court found that majority's moral condemnation of the intimate practices of homosexual partners does not justify criminal prohibition and found the private consensual practices are safegaurded by the liberty protection afforded by the due process clause of the forteenth amendment..

  • 13. Sammy  |  February 22, 2012 at 5:14 pm

    I know that the 8th held Oklahoma's DOMA constitutional, Im not sure about federal DOMA, but other ciricuits have held sexual orientation doesnt get heightened scrutiny so there would be a split there for sure.

  • 14. Bob  |  February 22, 2012 at 5:15 pm

    Supreme court has since rejected this artificial distinciton noting that it's more recent precedent, have declined to distinquish betweeen status and conduct in the context of sexual orienataion

  • 15. Bob  |  February 22, 2012 at 5:17 pm

    Okay I'll stop now HAPPY DAY OH HAPPY DAY !!!!!!!!!

  • 16. bjasonecf  |  February 22, 2012 at 5:17 pm

    Here's to lifesavers. Please always have hope, Gregory. We won't stop fighting for you, your husband, and everyone!

  • 17. Gregory in SLC  |  February 22, 2012 at 5:20 pm

    Oh gosh bjason…you got me crying now…thank you…thank you EVERYONE!

  • 18. Gregory in SLC  |  February 22, 2012 at 5:21 pm

    I'm pretty much speechless! : D !

  • 19. MightyAcorn  |  February 22, 2012 at 5:40 pm

    It's a nicely thought out, thorough, and well-written ruling. Another jewel to help us win more cases!

  • 20. Jamie  |  February 22, 2012 at 5:42 pm

    Stay? No mention of a stay?

  • 21. Tammy  |  February 22, 2012 at 5:44 pm

    Always have hope Gregory. I will continue to fight in any way I can. My best friend was the maid of honor in my wedding, and I intend to be in hers as well.

  • 22. Bob  |  February 22, 2012 at 5:54 pm

    reading the ruling,,,, there are so many words in there that feed a hungry soul,, that nourish a weary spirit ,,, that say stay out of the way of our destiny,,,, that says the moral majority for no reason,, even biblical !!!! excuses cannot call on the jucidcial system to implement laws against us!!!! my hope is strengthened,,, here I stand,,,,, we will prevail,,,,, we are,, EQUAL under the LAW

  • 23. Bob  |  February 22, 2012 at 5:56 pm

    different court case,,,,, but it does smack loudly enough to send the message to prop 8 saying lift the stay!!!!

    sure Kathleen will tell me how that can't happen,, and shatter that dream,,,,,, come on@@@

  • 24. Kathleen  |  February 22, 2012 at 6:05 pm

    I'm weak on this area of procedure, but I think a district court decision is automatically stayed for 14 days after the entry of judgment. Because judgment was issued today along with the order on the motions, the clock started ticking today. However, I think it's safe to assume the stay will be extended.

  • 25. DaveP  |  February 22, 2012 at 6:16 pm

    Bob, just wanted to tell you that I felt compelled to give your comment a whole slew of 'thumbs ups'. It didn't make a difference after the first one but it's the thought that counts. Thank you.

  • 26. Ann S.  |  February 22, 2012 at 6:44 pm

    Hip, hip, hooray!

  • 27. Mark M. (Seattle)  |  February 22, 2012 at 6:50 pm

    Congratulations Karen and Amy!!!!!
    Thank you for your courage and your determination!!!

  • 28. Taylor S.  |  February 22, 2012 at 7:38 pm

    I LOVED the little touch on the end there quoting Judge Roberts on judicial activism.

  • 29. Breaking - DOMA Ruled Unc&hellip  |  February 22, 2012 at 7:47 pm

    […] Check it out HERE. […]

  • 30. Str8Grandmother  |  February 22, 2012 at 7:55 pm

    Steve, really good news out of Hawaii, thanks for the heads up :)

  • 31. Str8Grandmother  |  February 22, 2012 at 7:57 pm

    Me too Taylor i LOVED that!

  • 32. Seth from Maryland  |  February 22, 2012 at 8:12 pm

    bye bye doma :) congrats to everyone in California, this was a very nice unexpected suprise today

  • 33. Str8Grandmother  |  February 22, 2012 at 8:12 pm

    Here is a really terrific analysis
    Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

  • 34. grod  |  February 22, 2012 at 8:42 pm

    While Judge White felt that heightened scrutiny was appropriate level of analysis, he also does a rational basis analysis and finds that Section 3 can not stand even that level of analysis. Case law is building. White writes in an easy to follow fashion.

  • 35. grod  |  February 22, 2012 at 8:55 pm

    Jacob quoted Jon Davidson, Legal Director of Lambda Legal as saying "the ruling we obtained yesterday reinstating our New Jersey marriage case" Can anyone fill us in?

  • 36. Taylor S.  |  February 22, 2012 at 9:06 pm

    Me too! I was a little at a loss for that one.

  • 37. Larry  |  February 22, 2012 at 9:11 pm

    Short version. Last November NJ judge dismissed all counts of the lawsuit except the charge that civil unions violate equal protection according to the state constitution. She amended her decision to allow an equal protection challenge according to the US constitution. The trial itself hasn't happened yet.

  • 38. Tony  |  February 22, 2012 at 9:13 pm

    I can't believe that BLAG are spending my tax dollars on a lawyer who cites a article in an attempt to refute claims made by an expert witness. It seems that the judge was perhaps shocked too. Page 27:

    "This is a three page, non-scientific article by an author with no professional experience in child development, published by a popular online magazine without peer review."

  • 39. Larry  |  February 22, 2012 at 9:17 pm

    Interesting to note that so far DOMA has been struck down by a Nixon appointnee (Judge Tauro in Massachusetts) and a George W. Bush appointee (White). Prop 8 was originally struck down by a George Bush Sr. appointee.

  • 40. Mar  |  February 22, 2012 at 9:25 pm

    Can't happen fast enough. I want to come home, but with my partner!!!!

  • 41. DaveP  |  February 22, 2012 at 9:42 pm

    Yup. I can imagine the sentence we was thinking right after that – 'what the hell were you guys thinking?'

  • 42. Jacob Combs  |  February 22, 2012 at 9:46 pm

    The split is that DOMA would be unconstitutional in the First Circuit, but not anywhere else. It's kind of a de facto split, and the decision would most likely be stayed. But it does create the kind of occasion that makes Supreme Court review more likely.

  • 43. Jacob Combs  |  February 22, 2012 at 10:04 pm

    Here's a link to a story, if you're interested!

  • 44. Cat  |  February 22, 2012 at 10:05 pm

    Yes, he's really rubbing it in.

    "This is a three page (stab!), non-scientific (stab!) article by an author with no professional experience in child development (BIG stab!), published by a popular online magazine (stab! stab!) without peer review (die already!!!)."

    Yet the judge does his analysis so eloquent and thorough. Love it!

  • 45. Straight Ally #3008  |  February 22, 2012 at 10:08 pm

    "Good God, man!"

  • 46. Jed  |  February 22, 2012 at 10:58 pm

    I find it especially remarkable that Judge White tosses in a footnote covering the fundamental right to marry. To these uneducated eyes it sounds like he's resolving Perry in three paragraphs, as if it's not even worth arguing over.

  • 47. Bryce from DC and KS  |  February 23, 2012 at 1:09 am

    This is great news indeed.

    Off topic: I was re-reading Cooper & Co.s en banc petition, and I was comparing it to the Romer decision, when I came across an interesting little nugget in the syllabus of the decision:
    "Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Charles J. Cooper…."

    Could someone dig up Coop's original amicus brief? It might be good for a laugh.

  • 48. Bill S.  |  February 23, 2012 at 2:01 am

    A split is when two circuit courts come to opposite conclusions on the same matter of law. There is no other circuit that has found DOMA to be unconstitutional…actually, no circuit has even ruled on it yet.

    The Supreme Court will take this case not because of a circuit split but because of the necessity of having a definitive, nation-wide resolution to this question of law, which is another reason the Supreme Court will take a case. There are recognized same-sex marriages in the 1st, 2nd, 8th, 9th, and DC circuits. The Supreme Court will need to resolve this issue nationwide. They will take the appeal from the 1st Circuit once it is completed.

  • 49. grod  |  February 23, 2012 at 4:42 am

    Thanks Larry. SHe did so in a 70+ page decision. Can someone post it here. G

  • 50. bjasonecf  |  February 23, 2012 at 6:12 am

    If I have the case right, it is this one (only 27 pages, though):

  • 51. Leo  |  February 23, 2012 at 7:21 am

    Off-off-topic: I was also re-reading it and what strikes me is the contradiction between Cooper's arguments that, on one hand, Prop 8 voters thought straight couples needed special encouragement to form unions (because of the potential for accidental procreation) and, on the other hand, taking marriage away from gay couples doesn't label their relationships inferior, only "different."

    Question: Does marriage [in fact or at least in the voters' mind] really provide more incentive to form a union than domestic partnership does?
    If not, then the first argument fails.
    If yes (as is the more likely answer), then… how does it do that? What is it about marriage that gives it more appeal than domestic partnership? Answer: it's considered a superior status. QED

  • 52. Ed Cortes  |  February 23, 2012 at 7:23 am

    I like the section on Page 9 where he also mentions that DOMA (should that be dogma, or dommy?) section 2 violates the Full Faith and Credit clause of the Constitution!

  • 53. Sammy  |  February 23, 2012 at 7:41 am

    We should note that it was 9th Circuit Chief Judge Alex Kozinski who said in administrative orders the federal government's refusal to provide benefits to Golinski's spouse violates her rights which started this case….

    So I think we know how he will rule in regards to the en banc decision… Thats 1 of 11 so far (if they even take it up)

  • 54. MJFargo  |  February 23, 2012 at 7:42 am

    I'm sure Mr. Cooper would answer that question with an earnest "I don't know."

  • 55. Jacob  |  February 23, 2012 at 9:29 am

    Assuming he's one of the 11, that is…

  • 56. Bill S.  |  February 23, 2012 at 9:31 am

    The Chief Judge appears on all en banc panels. The other 10 are randomly selected.

  • 57. Jacob Combs  |  February 23, 2012 at 10:28 am

    My mistake–Bill is right. There would be no circuit split, but I agree that the Supreme Court would take the case to provide a nationwide, definitive answer. I believe they will take it, and I believe DOMA will be struck down.

  • 58. Sammy  |  February 23, 2012 at 11:42 am

    I notice there hasnt been a peep about this ruling from NOM… I guess they want to keep their financial supporters heads in the sand?

    I guess its hard to spin a George W appointed judge as another "activist" and with defeat after defeat piling up they dont think anyone will notice skipping this one, especially with Maryland coming tomorrow…

  • 59. BradK  |  February 23, 2012 at 1:28 pm

    It could just be that poor Maggpie has run out of breathless superlatives in which to energize her base.

    Then again, this isn't getting nearly the press in the MSM as the Prop8 ruling 2 weeks ago.

  • 60. MightyAcorn  |  February 23, 2012 at 2:03 pm

    I think that's because they don't want to explain what "en banc" entails (not that they know, so that makes it even more work to report on.) I'm still a bit unclear on the details myself despite the best efforts of the legal eagles here and elsewhere. It's a bit baroque, en banc is, IMHO.

  • 61. Straight Dave  |  February 23, 2012 at 8:35 pm

    Judge White appears to have (more or less) addressed one lingering question floating around this group for a long time – what a "failure to recognize" actually does to a person's marriage. Does it get invalidated, ignored, lost, cancelled, what?

    While the context of footnote 5 on page 13 is the federal gov't, I would think the same logic applies to any state gov't. Once you're married, you stay married, even if some people want to avert their eyes.

    "The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law."

    This may come in handy somewhere along the line for some of our migrant couples.

  • 62. Lymis  |  February 28, 2012 at 7:28 am

    Obviously a despicable "stealth judicial activist" – the very worst kind.

  • 63. Prop 8 Trial Tracker &raq&hellip  |  April 3, 2012 at 8:31 am

    […] ago, another Republican-appointed judge, Jeffrey White of the Northern District of California, also declared DOMA […]

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