Bush-appointed judge is the latest to say law fails crucial legal tests by Mike Andrew - SGN Staff Writer

A federal district judge in Connecticut ruled on July 31 that the Defense of Marriage Act (DOMA) violates the Fifth Amendment's equal protection clause and fails both the 'heightened scrutiny' and 'rational basis' tests for constitutionality.

Vanessa Bryant, who was appointed to the federal bench by President George W. Bush, ruled in the case of Pedersen v. OPM that laws classifying people based on sexual orientation should be subject to heightened scrutiny by courts but found that 'it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.'

'Heightened scrutiny,' as defined in the 2008 U.S. Supreme Court decision Witt v. U.S. Air Force, means that to be found constitutional, a discriminatory law must (a) advance an important governmental interest, (b) significantly further that interest, and (c) be necessary to further that interest.

'Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition,' Bryant concluded, 'thereby resulting in an inconsistent distribution of federal marriage benefits, as all marriages authorized by certain states will receive recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits.'

In a written opinion more than 100 pages long, Bryant dismissed arguments by the so-called Bipartisan Legal Advisory Group (BLAG), created by Republican House Speaker John Boehner to defend DOMA after the Obama administration declared it could no longer do so.

'In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision,' Bryant wrote.

'The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.'

'Rational basis' review tests whether a government action like DOMA is a reasonable means to an end that may be legitimately pursued by the government.

GLAD WELCOMES BRYANT'S RULING
Pedersen was filed by GLAD (Gay and Lesbian Advocates and Defenders) on behalf of six same-sex married couples and one widower who claim they were denied federal benefits they would have received had they been opposite-sex married couples.

'Judge Bryant's ruling is very clear - married people are married and should be treated as such by the federal government. There is no legitimate basis for DOMA's broad disrespect of the marriages of same-sex couples,' GLAD Civil Rights Project Director Mary Bonauto said in a statement.

'We are very pleased that the Court recognized that DOMA's creation of second-class marriages harms our clients who simply seek the same opportunities to care and provide for each other and for their children that other families enjoy.'

Pedersen was also the case in which U.S. Attorney General Eric Holder determined that the Justice Department could no longer defend DOMA.

'After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,' Holder said at the time.

'The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.'

Section 3 of DOMA is the part specifying that 'the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.'

At least six other federal judges over the past two years have found Section 3 of DOMA unconstitutional. Four of those cases are awaiting review by the U.S. Supreme Court.

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