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Back to Section One | Back to Arts & Entertainment
posted Friday, February 24, 2012 - Volume 40 Issue 08
One more time: DOMA is unconstitutional
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One more time: DOMA is unconstitutional

by Mike Andrew - SGN Staff Writer

A federal district judge in San Francisco ruled on February 22 that DOMA is unconstitutional.

In his ruling, Judge Jeffrey White, a George W. Bush appointee, also dismissed the claims of BLAG - the so-called Bipartisan Legal Advisory Group - that the U.S. government had a compelling interest in upholding DOMA. BLAG was assigned by House Speaker John Boehner to defend DOMA in court after the U.S. Justice Department determined the law was unconstitutional and said it would no longer defend it.

'In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse,' White wrote in his ruling.

Karen Golinski and her partner Amy Cunninghis registered as domestic partners with the City of San Francisco in 1995 and with the State of California in 2003. They married in 2008 during the period when same-sex marriages were legal in California, and they remain legally married.

Golinski, who works for the federal Ninth Circuit Court, registered Cunninghis for spousal health care benefits, but the Office of Personnel Management decided that she was not entitled to benefits because DOMA forbids federal agencies from recognizing same-sex marriages.

Golinski then sued, claiming discrimination. Ninth Circuit Court Chief Judge Alex Kozinski ordered OPM to process Golinski's application in 2009, but OPM refused to comply.

Golinski v. OPM has been winding its way through the court system since then.

In his decision, Judge White supported Kozinski's 2009 ruling, saying that 'considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny,' because of the history of discrimination faced by the LGBT community, its relative lack of political power relative to the straight community, and the immutability of sexual orientation.

'Heightened scrutiny' means that a law may not treat different categories of people differently unless it passes a three-pronged legal test.

According to the U.S. Supreme Court decision in Lawrence v. Texas - which struck down sodomy laws - such a law 'must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.'

In his 43-page ruling, White demolished the arguments in favor of DOMA, saying it serves no rational purpose and does not advance any legitimate government interest.

White also explicitly criticized Congress for failing to protect the rights of legally married same-sex couples.

'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,' he wrote.

'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.'

'I am profoundly grateful for the thought and consideration that Judge White gave to my case,' Golinski said.

'His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues. This decision is a huge step toward equality.'

Tara Borelli, staff attorney for Lambda Legal, who helped represent the women, says the ruling 'spells doom for DOMA.'

'The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment,' Borelli said in a statement.

'The Court agreed with us that sexual-orientation discrimination by the government should receive heightened scrutiny under the Constitution. It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive.'

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