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District Court Judge Strikes DOMA Down in Golinski Case

Judge Jeffrey White, a Bush appointee of the U.S. Court for the Northern District of California, issues an opinion declaring the Defense of Marriage Act unconstitutional using a heightened scrutiny test.  In his ruling, Judge White writes, “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.”

Unlike Judge Joseph Tauro, the Massachusetts judge who struck down DOMA on equal protection grounds in 2010, Judge White opts instead to follow a heightened scrutiny analysis, providing a detailed justification for his decision to do so.  White’s decision comes in spite of a previous Ninth Circuit decision from 1990 called High Tech Gays in which the court ruled that gays are not a suspect or quasi-suspect class that merits heightened scrutiny.  In making that decision, Judge White points to the fact that High Tech Gays was based upon a Supreme Court case from 1986 called Bowers v. Hardwick, in which the high court upheld sodomy laws as unconstitutional.  The 2003 Supreme Court case Lawrence v. Texas explicitly overturned Bowers, making High Tech Gays bad law, Judge White argues, and leaving the scrutiny question open to interpretation.

In determining whether individuals are members of a suspect or quasi-suspect class, Judge White writes, the Supreme Court lays out four factors: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political power of the subject class.

Addressing each of these factors in turn, Judge White notes (1) that “there is no dispute in the record that lesbians and gay men have experienced a long history of discrimination,” (2) that “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,” (3) that “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” and (4) that “[d]espite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination ‘unlikely to be rectified by legislative means.’”

Applying the heightened scrutiny test to DOMA, Judge White goes on to write that DOMA does not encourage responsible procreation or child-raising, does nothing to “defend and nurture the institution of traditional, opposite-sex marriage,” cannot be upheld with the argument that it “defend[s] traditional notions of morality” and cannot be saved by the argument that it preserves government resources.  Because of this, Judge White strikes DOMA down as unconstitutional under the equal protection provisions of the Fifth Amendment, while noting that the statute would also fail under rational basis review.

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