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DOMA: Examining the Golinski case and why DOMA fails to pass constitutional muster

DOMA trials Golinski

By Adam Bink

As originally posted by Sagesse in Quick Hits, attorney Robert Pfister, who was part of the legal team that successfully challenged DOMA in California, gives an eloquent argument for why DOMA fails to pass constitutional muster at any level of scrutiny:

On October 14, 2011, the Republican members of the US House of Representatives Bipartisan Legal Advisory Group filed a brief in Golinski v. US Office of Personnel Management defending the constitutionality of the federal Defense of Marriage Act (DOMA). The Golinski case is one of several pending actions by federal employees challenging the government’s refusal to recognize same-sex marriages that are valid under the laws of the states in which the employees reside. In its brief, the group argued that (1) discrimination on the basis of sexual orientation is subject to the lowest level of constitutional scrutiny, or rational basis review; and (2) under rational basis review, DOMA passes muster. The group’s defense of DOMA fails on both counts.

Courts should be presumptively suspicious of discrimination on the basis of sexual orientation, which in legal terms means that “heightened scrutiny,” rather than rational basis review, should apply. Laws often draw distinctions between people, and the vast majority of the time those distinctions are fitting and proper. Drivers who exceed the speed limit, for example, are subject to traffic tickets and possible fines, whereas drivers who travel at or below the speed limit are not. In general, a court evaluating the constitutionality of a law considers only whether the law has some rational relationship to a legitimate governmental interest — which, as a shorthand, is termed rational basis review. Virtually all laws pass rational basis review. In the speeding ticket example, the purpose of the law is to decrease traffic accidents, and ticketing speeders is a rational way to accomplish that legitimate end. The fact that many or most speeding drivers may not cause traffic accidents is not enough to make the law invalid.

Some types of distinctions, however, trigger heightened scrutiny. Laws or policies that categorize people on the basis of race or gender, for example, must be closely examined to determine whether there is a real and compelling need for the distinction, or whether there are other, less discriminatory ways to accomplish the legislative purpose. Thus, a warden’s decision to separate inmates on the basis of race would not be constitutional if the aim was simply to reduce the potential for conflict generally, but might be permitted in the hours immediately following a race-based riot at the prison.

Broadly speaking, the question of whether to apply heightened scrutiny to discrimination on the basis of sexual orientation depends on how likely such a distinction may be a proper basis for laws or policies. In an era when the last remaining legal differences between gay and straight Americans are fast disappearing (e.g., the repeal of “Don’t Ask, Don’t Tell” and the invalidation of the last remaining legal proscriptions on homosexual conduct), there is little reason to think that sexual orientation will be a proper basis on which to draw legal distinctions. For example, laws that limited foster care placement to prospective parents without convictions for child abuse would easily pass rational basis review, but should laws that prevent gays and lesbians from adopting children be subject to the same lax standard? Or should we closely examine such laws with the same level of suspicion that would attach to laws that denied interracial couples the right to adopt? The plaintiff in Golinski has the far better argument on this point.

Notably, the group essentially concedes that if heightened scrutiny applies DOMA is unconstitutional. That is the same conclusion reached by the Obama administration. Thus, the group’s entire argument in favor of DOMA’s constitutionality rests on the premise that the government may discriminate against gay and lesbian Americans just as easily as the government could prohibit young people from moving into a seniors-only retirement community. In other words, if the group is wrong on its rational basis argument then there is no question that DOMA is unconstitutional.

The group’s brief is devoted to arguing that DOMA has at least some rational basis to a legitimate governmental interest. Despite the ease with which most laws pass rational basis review, courts have increasingly held that DOMA cannot satisfy even this lowest level of scrutiny because ignoring the otherwise valid marriages of gay and lesbian couples has no rational relationship to any legitimate governmental interest. Ignoring one marriage does not strengthen any other marriages, nor is it a proper way to limit the expenditure of governmental resources, any more than arbitrarily denying recognition of marriages celebrated on a Tuesday.

Beyond the proper standard of review, the heart of the Golinski case is whether the federal government may recognize some valid marriages (those of opposite-sex couples) but ignore other, just as valid marriages (those of same-sex couples). In our federalist system, the law of marriage, divorce, parentage and other domestic relations matters is generally left to each particular state, with the federal government recognizing a marriage as valid if it is valid under the law of the state in which the couple resides. DOMA, however, creates an unprecedented exception to that long-settled rule: marriages between individuals of opposite genders will be recognized as under state law, but marriages between same-sex couples will be disregarded for purposes of federal law. DOMA therefore draws a distinction on the basis of sexual orientation.

Under our constitutional system, the government cannot treat persons who are alike in all relevant respects differently. Legally married same-sex couples are constitutionally indistinguishable from legally married opposite-sex couples. DOMA’s irrational insistence to the contrary is not within our constitutional tradition, as it violates the principle laid out in Romer v. Evans that “government and each of its parts remain open on impartial terms to all who seek its assistance.”



  • 1. Alan_Eckert  |  October 31, 2011 at 9:48 am

    "Notably, the group essentially concedes that if heightened scrutiny applies DOMA is unconstitutional."

    This sentence is a little odd to read. It seems like the plaintiffs are referred to as "the group" here, but I think the writer means BLAG. This should be clarified.

  • 2. Alan_Eckert  |  October 31, 2011 at 9:49 am

    In fact, BLAG should be the go-to moniker, not "the group" to clarify things throughout.

  • 3. Rob Pfister  |  October 31, 2011 at 11:17 am

    Funny — I actually wrote the piece using "BLAG" throughout, but Jurist edited it to replace BLAG with "the group." I suppose they wanted to avoid clunky acronyms, but I agree that BLAG would be much clearer here. Or even "the House" if necessary. But anyway, I hope the point still comes across.

  • 4. Alan_Eckert  |  October 31, 2011 at 10:12 am

    "DOMA therefore draws a distinction on the basis of sexual orientation."

    A legal brief in a few short sentences:

    I've read some arguments that say DOMA prevents polygamous marriages or marriages between close relatives, too, however, no state allows these, and the only current division is between same-sex couples and opposite-sex couples. It can be assumed that people that are married and of the same sex are homosexual (or at least bisexual but can be assumed to have committed to a monogamous opposite-sex relationship and cannot be assumed to be polyamorous), just as it can be assumed that people of the opposite sex are heterosexual (or at least bisexual but can be assumed to have committed to a monogamous same-sex relationship and cannot be assumed to be polyamorous). Sexual orientation fits all of the criteria for heightened scrutiny (and using pseudoscience and spin does not count in court).

    Therefore, DOMA discriminates based on sexual orientation and is unconstitutional.

  • 5. Leo  |  October 31, 2011 at 10:20 am

    I can see how one could argue that DOMA prevents polygamous marriages (it does say "one man and one woman"), but how does the argument go that it prevents marriages between close relatives? Just curious.

  • 6. Alan_Eckert  |  October 31, 2011 at 10:26 am

    There have been statements in a brief that claims that treating sexual orientation the same as a close-relative relationship falls under rational basis scrutiny. It doesn't prevent it, but it's used as one of those "slippery slope" examples.

    I should also add that "close relative" is very, well, relative. Some states allow marriages between 1st cousins, more than allow marriages between same-sex couples.

  • 7. AnonyGrl  |  October 31, 2011 at 11:21 am

    In the grand scheme of "slippery slope" arguments, DOMA supporters do like to use the idea that if marriage equality passes, there is no bar to brothers marrying each other. This is not the case. Here in NY, I believe that the legislation was worded in such a way that basically said "all the rest of the rules apply, but the one that says gender does not." That means incestuous marriages or underage marriages are still illegal, but any marriage that was formerly legal between a man and a woman is now legal between two people regardless of gender.

    May I point out that in some states, a pregnant 14 year old can marry her first cousin who she never met before they got to the clerk's office to file the paperwork, if he is male. But in those same states, a couple who are completely unrelated by blood who have been together for 50 years and raised children and grandchildren together cannot marry if they are both men. Which marriage would YOU think harms the sanctity of the institution?

  • 8. Leo  |  October 31, 2011 at 11:40 am

    Well sure, I've heard the slippery slope arguments (however misguided). I thought maybe someone was arguing that it's DOMA itself (as opposed to arguments in favor of DOMA) that somehow guards against marriages between relatives.

  • 9. Bob  |  October 31, 2011 at 12:48 pm

    I don't think DOMA has anything to say beyond the topic of same-sex marriage. It takes it as a given that such marriages would be legal unless they were prohibited on some other, already existing, basis, such as consanguinity and is directed strictly at
    a) preventing the federal recognition of same-sex marriages between unrelated adults who were not already married to someone else and
    b) preventing the requirement that states recognize marriages legally performed elsewhere (at least in the US) from applying only to same-sex marriages.

    It does seem that no matter how you look at it, the implication that DOMA targets a specific group of people for disparate and disfavored treatment is unmistakable.

  • 10. Steve  |  October 31, 2011 at 2:19 pm

    And if they go to Las Vegas they can be married in a drive-through chapel by an Elvis impersonator

  • 11. Thark  |  October 31, 2011 at 6:28 pm

    That incest argument is the most laughable that the DarkSide has to offer; after all, marriage, in the eyes of the government, is recognizing the legal 'familihood of tweo adults who are otherwise unrelated, as a recognized family household.

    here's thr tricky part for the H8ers of H8terVille: it's called "incest'" because THEY ARE ALREADY CONSIDERED 'FAMILY' FROM DAY ONE. They therefore can prove no "need" to re-identify such couples as "family members" for legal purposes because [TA-DA, Antigay freaks]


    (thus this incest red-herring is so dried up, it's not even red anymore; sort of a fertid dusty brown-grey; much like to ooze they must've dragged these "laws" up out of, in order to harm Gays and only Gays, leaving all other citizens 100% unmolested. *UNCONSTITUTIONAL ON ITS FACE* DOMA IS DEAD THE MOMENT IT IS CHALLENGED.)

    *Like it or not*

  • 12. Ronnie  |  October 31, 2011 at 11:08 am

    Subscribing & sharing… Happy Halloween!!!!!!…..

    Halloween: Our American gay holiday
    By: Rev. Irene Monroe Monday October 31, 2011:

    ; )…Ronnie

  • 13. Gregory in SLC  |  October 31, 2011 at 11:41 am

    HH to U2! follow up from comment in the Halloween Article, Hell Houses still exist:

  • 14. Tony  |  October 31, 2011 at 2:31 pm

    Whitehouse responds to a "we the people" petition asking to repeal DOMA!/response/

  • 15. swizrestprogsum  |  August 26, 2012 at 10:38 am


  • 16. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 4:20 pm

    […] California Supreme Court and at the 9th Circuit.  We’ve already had some excellent posts (here and here) examining the intricacies of rational basis vs. heightened scrutiny.  What’s […]

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