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DOMA trial: The Golinski decision revisited, and the crucial importance of heightened scrutiny

DOMA trials Golinski

By Jacob Combs

It’s been exactly a month to the day since Judge Jeffrey White of the Northern District of California struck down the Defense of Marriage Act as unconstitutional in Golinski v. Office of Personnel Management.  It is of course significant that DOMA has now been struck down by two district courts, and equally important that the Ninth Circuit will consider the law’s constitutionality in the same way that the First Circuit will later this month.  But the most significant aspect of Judge White’s ruling is a procedural legal issue regarding the level of scrutiny with which the law should be examined: Judge White is the first judge to argue that DOMA should be considered under heightened scrutiny.  Not only is White correct in making this determination, but his ruling may signal a profound shift in LGBT jurisprudence that could have far-reaching effects for other gay rights legal challenges.

The issue of the appropriate level of judicial scrutiny has come up before in the DOMA and Prop 8 cases before, but it’s worth delving into the legal details here for a bit.  Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny.  As Judge White writes in explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion” (12).  In cases like these, the government must show that a classification is “substantially related to an important government objective” (12).  If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest” (12-3).

In his opinion, Judge White first explains that the Golinski case does involve a fundamental right: the right to marry.  “It is established,” he writes, “that there is a fundamental right to marry” (13), adding that “the analysis of the fundamental right to marry has not depended on the characteristics of the spouse.”  In Loving [v. Virginia], the Court defined the fundamental right as the right to marry, not the right to interracial marriage” (14).  Golinski, then, is not about a right to ‘gay marriage,’ but about the fundamental right to marry.  This alone makes a compelling case for heightened scrutiny.  But Judge White continues.  Follow me after the jump to read more about White’s scrutiny determination.

In assessing whether a law affects a protected class, courts look at four factors: (1) a history of discrimination against the class, (2) whether the characteristics that distinguish class affect a member’s ability to contribute to society at large, (3) whether membership in the class is “immutable” and out of members’ control and (4) how politically powerful the class is.  Judge White points out that “no single factor for determining elevated scrutiny is dispositive” (14), and that the Supreme Court has placed much more weight on the issue of discrimination and the ability to contribute to society as opposed to the other two considerations.

Judge white addresses each of these four factors in turn.  On the issue of discrimination, he writes, “There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination” (18).  In terms of contributions to society, White cites the ruling in the Prop 8 trial, noting 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” (19).  As for the immutability of sexual orientation, Judge White acknowledges that BLAG presented evidence in the case that there is “some fluidity” in sexuality for a “very small minority” of gays and lesbians, but affirms that “the consensus in the scientific community is that sexual orientation is an immutable characteristic” (19).  Furthermore, he points out that Ninth Circuit precedent holds that “sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity” (20).

During oral arguments, BLAG argued that the Obama administration’s reversal of position on defending DOMA in court came after it received a letter from the Human Rights Campaign, and that this decision showed that gays and lesbians are not politically powerless.  Not only does Judge White demolish the claim that the letter and the Justice Department’s decision were related, calling it “speculative at best” (22), he goes on to argue that the  marriage equality wins in a handful of states and nomination of four openly-gay judges that BLAG cites as evidence of gays’ political power are in fact “exceptions and not the rule” (22).  Gays and lesbians, White writes, have limited political power, and are subject to the whims of majoritarian politics.  Drawing on all four factors to make his decision about the proper level of judicial scrutiny to be applied to DOMA, White writes resoundingly: “this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority” (24).

The rest of White’s persuasive opinion, in which he explains why DOMA is unconstitutional and refutes all of BLAG’s claims for why the statute should stand, is well worth reading.  (There’s a gem on page 41 when he writes 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.”)  But it is his ruling on heightened scrutiny that lays the foundation for other courts to follow suit in the future.

Up until Judge White’s Golinski ruling, most of the courts that have looked at equal protection challenges as they relate to gays and lesbians have relied on rational scrutiny.  For instance, both Judge Vaughn Walker in the Prop 8 case and Judge Joseph Tauro, who heard another DOMA case in Massachusetts, struck down those laws on rational basis grounds, acknowledging that heightened scrutiny might apply but maintaining that neither DOMA nor Prop 8 could be upheld for any rational governmental intent.  Judge White points out that the scrutiny question is still open, writing that “the Supreme Court and Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect)” (17).

Absent a higher court’s decision to apply heightened scrutiny, Judge Walker and Judge Tauro were probably wise in crafting decisions relying on the more deferential test, meaning that their findings of law are more likely to be upheld by appellate courts (and, perhaps, the Supreme Court).  Nevertheless, as Judge White makes eminently clear, heightened scrutiny is the proper standard for laws that discriminate against LGBT individuals.  These laws should not be shown the deference accorded by rational basis scrutiny; rather, they should be subject to a thorough and stringent examination to ensure they do not arise out of majoritarian animus for an unpopular minority.

What makes Judge White’s decision so significant is the fact that it provides an opportunity for higher courts to rule that heightened scrutiny should apply to LGBT rights cases.  Those rulings would have major precedential impacts.  In 1990, the Ninth Circuit ruled in a case called High Tech Gays that gays and lesbians were not a suspect class.  That ruling, however, was based on Bowers v. Hardwick, a Supreme Court decision that upheld sodomy laws.  If homosexual behavior could be criminalized, the Ninth Circuit argued, gays could not be a class entitled to protection.  As White argues, now that Bowers has been overruled by Lawrence v. Texas, High Tech Gays is no longer binding precedent.  The Ninth Circuit, then, is free to reconsider the scrutiny issue as it pertains to gays and lesbians.

And, of course, the ultimate prize would be a Supreme Court ruling calling for heightened scrutiny as the correct standard of review.  In his dissent from the Ninth Circuit’s decision striking down Prop 8, Judge N. Randy Smith cited the Supreme Court’s 40-year-old decision in Baker v. Nelson as a precedent against a constitutional right to marriage equality.  In the Golinski ruling, Judge White points out that Karen Golinski is legally married under California state law, while the Baker plaintiffs were not.  The pre-Lawrence Baker decision, Judge White writes, is thus “irrelevant” to the DOMA cases.  Both High Tech Gays and Baker show that it is time for the Ninth Circuit and the Supreme Court to revise their opinions on heightened scrutiny as it applies to gays and lesbians.  In that regard, Judge White’s ruling may be the first step to what could be the LGBT movement’s greatest legal victory.


  • 1. Sagesse  |  March 22, 2012 at 2:21 pm


  • 2. Kathleen  |  March 22, 2012 at 2:47 pm

    Jacob, generally a good article, but there are a couple of points with which I take issue:

    1. I think it's important to note that, while Judge White writes about the fundamental right to marry, this opinion does not stand for that proposition. This discussion is in a footnote where he concedes that this right is not at issue in this case. In legal jargon, this discussion is "mere dicta." In contrast, Judge Walker's decision in Perry did rely on the fundamental right to marry in his analysis of the due process claim. (though that issue was side-stepped by the 9th Circuit in its opinion).

    2. I disagree that the Golinski decision is the first time that a judge has said that laws discriminating against gays and lesbians should be subject to heightened scrutiny. It's been a long time since I've read the Perry opinion, but I recall Judge Walker coming to the same conclusion. Walker, just like Judge White does here, went through a thorough analysis of the factors involved and came to the same conclusion regarding heightened scrutiny and whether or not High Tech Gays is still good law. But Judge Walker, as a district court judge can not overrule binding precedent within the Circuit any more than Judge White can.

    There are clearly differences between Golinski and Perry, the most obvious being that that one involves a state law and the other, a federal law (so the equal protection claims rely on different parts of the Constitution). Also, Golinski is the first decision to come down since the DOJ took the position that DOMA should be subjected to heightened scrutiny. But the point I'm making is that Judge White's determination on the level of scrutiny is no more legally relevant–nor has any more precedential weight–than does Judge Walker's before it was appealed.

  • 3. Jamie  |  March 22, 2012 at 3:32 pm

    Judge Walker did come to the same conclusion re: heightened scrutiny in Perry, although his decision was dicta as well, as it wasn't necessary based on his "rational basis" decision.

  • 4. Tyler  |  March 22, 2012 at 10:06 pm

    True about the scrutiny. I'm glad that he explicitly went through it (unlike Judge Walker), because I think a lot of appellate court judges don't understand how deciding whether a group is a suspect class work (most egregiously represented by the First Circuit in Cook v. Gates, where the court said there was no heightened scrutiny for gays because the Supreme Court hasn't yet decided the issue… Apparently forgetting that the lower courts are supposed to come to their own conclusions before SCOTUS weighs in). Anyway, the Ninth Circuit in Witt very misfortunately ratified rational basis scrutiny in the equal protection context, and it would be almost impossible for anyone but an en banc court or the Supreme Court to change that, which makes the heightened scrutiny language in Judge Walker's and Judge White's opinions a particularly irrelevant species of dicta…

  • 5. Str8Grandmother  |  March 24, 2012 at 6:38 pm

    Although in Witt they decided Rational basis, but that was a different kind of lawsuit. IIR that was DOMA as applied to Major Witt. Going out on a limb here seeing if I have this right, the Witt case was not a wholsale attack on DOMA, but rather specifically how DOMA was applied to one person, Major Witt. Does that make the case different enough from other cases so that heightened scrutiny can apply to other cases?

  • 6. Tyler  |  March 24, 2012 at 11:01 pm

    Witt didn't relate to DOMA at all. It related to Don't Ask Don't Tell. So it doesn't prevent the invalidation of DOMA. But it specifically held that rational basis is the appropriate level of scrutiny to apply to equal protection challenges to sexual orientation discrimination. It's possible for a lower court or a future panel of the Ninth Circuit to weasel out of that incorrectly holding, but frankly it would be disingenuous. The hope is that the en banc Ninth Circuit or the Supreme Court would overrule that error.

  • 7. Str8Grandmother  |  March 25, 2012 at 2:20 am

    Oh yeah, LOL! To many acronyms for me to keep track of, yup DADT not DOMA. I'll go back and read Witt again, thx.

  • 8. José Merentes  |  March 25, 2012 at 11:36 am

    About the level of scrutiny, the European Court on Human Rights has prompted strict scrutiny on cases related to lgbt and delivered status of family to gay couples.

  • 9. Bill S.  |  March 23, 2012 at 4:29 am

    Homosexuals clearly meet all of the requirements for strict scrutiny and this is the only appropriate test that should be applied to laws burdening their rights.

    I am confident that the Supreme Court will use the DOMA cases as the opportunity to finally issue a decisive decision on a question that has been plaguing our court system since Lawrence: What is the level of scrutiny to be applied in regards to sexual orientation? And I believe they will answer this question with "strict scrutiny."

  • 10. Kevin  |  March 23, 2012 at 12:54 pm

    There is obviously a need for a full throttled federal equal protection analysis to address the standard of review issue. Which court is finally going to take the hot potato and run with it?

  • 11. Tyler  |  March 23, 2012 at 1:23 pm

    I think that if the Ninth Circuit takes the Prop 8 case en banc, I think there's an extremely good chance that it will do so (one reason why the Proponents were short-sighted in asking for en banc).

  • 12. José Merentes  |  March 25, 2012 at 11:56 am

    Even the Italian Cassation Court (Supreme Court) has stated the familial character of gay relations:

    In a landmark ruling the Court of Cassation stated on March 15th 2012 that 'same-sex couples have the same right to a family life as married straight couples', adding that 'the judiciary shall grant them the same legal rights as enjoyed under marriage on a case-by-case rule'. Even though the Court's judgments are not binding outside the case decided, lower courts find those judgments persuasive. Whereas the Parliament remains free to introduce same-sex unions or not, the verdict paves the way for such unions to be equivalent to marriage in all but name and for judges to recognize individual rights to cohabiting couples.[7][8](Taken from WIKIPEDIA).

  • 13. Obama Supports Gay Marria&hellip  |  May 27, 2012 at 1:19 pm

    […] […]

  • 14. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:20 am

    […] Section 3 as unconstitutional. The decision is notable as the first one to strike down Section 3 using heightened scrutiny. After the district court decision, the Justice Department asked the Ninth Circuit Court of Appeals […]

  • 15. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 8:25 pm

    […] wrote recently about how the district court’s decision in Golinski v. OPM, looking specifically at […]

  • 16. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 8:44 pm

    […] expected either right after their September 24 conference or the following week. The district court struck down Section 3 of DOMA and applied a heightened form of judicial scrutiny along the way; it was the first federal court to apply that standard of […]

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