DOMA Struck Down by District Court in Golinski Case

In a ruling issued yesterday, Judge Jeffrey S. White of the Northern District for the State of California struck down the federal Defense of Marriage Act as unconstitutional under the Equal Protection Clause.  Judge White did not find that the Constitution requires the states to recognize same-sex marriage.  Instead he simply ruled that the federal government may not refuse to recognize the validity of same-sex marriages that the states have chosen to recognize.  But his reasoning leaves little doubt that the states will be required to follow suit.

In 1996 Congress enacted the Defense of Marriage Act in which it provided that the federal government would recognize as valid only marriages between a man and a woman.  In other words, under DOMA even if a state were to recognize same-sex marriages, these marriages would not be valid for purposes of federal law.  Same-sex couples could not file joint tax returns, take advantage of numerous tax deductions or exemptions, receive the benefit of health insurance or other benefits earned by federal employees, or qualify for social security survivorship benefits.  Ms. Golinski, a federal employee, sued the federal Office of Personnel Management contending that DOMA unconstitutionally deprives her and her wife of employment benefits.

In what has now become a familiar pattern, Judge White began by finding that DOMA should be evaluated under "intermediate scrutiny," that is, that the law is presumed unconstitutional and that the government had the burden of proving that the law was "substantially related" to achieving an "important government interest."  Four factors affect the level of scrutiny that must be applied, and all four factors were satisfied in this case.  Gays and lesbians have suffered from a history of discrimination in this country.  Sexual orientation is immutable; aside from a small minority of people it is neither chosen nor can it be changed.  Gays and lesbians are relatively powerless.  And sexual orientation is not related the ability of a person to perform or contribute to society. 

Accordingly, Judge White found that intermediate scrutiny applied.  However, he also found that this law would not even pass the "rational basis" test - that the law did not even tend to accomplish a legitimate governmental interest.

Judge White considered a number of governmental interests that supporters of DOMA have asserted are served by the law, and he rejected each of these interests in turn. 

1.  Traditional Notions of Morality.  Judge White quoted extensively from the legislative history of DOMA to show that it was adopted because of extreme prejudice against gays and lesbians.

In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct ... and they express their disapprobation through the law.” 142 Cong. Rec. H7480 (daily ed. July 12, 1996).  In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle – these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle ...  Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their behavior ... At the heart of this debate is the moral and spiritual survival of this Nation.” 142 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across the country.”). The House Report on the pending DOMA bill stated: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails [a] moral disapproval of homosexuality.” H.R. Rep. 104-664, at 15-16. The Report further stated that “same-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people ... feel ought to be illegitimate.” Id. at 16.

While it is undisputed that DOMA reinforces traditional moral beliefs, Judge White found that this is not a legitimate governmental interest.  Merely because marriage has previously been defined as between a man and a woman does not mean that this definition is constitutional.  The government must point to some reason why the traditional beliefs are rational and fair.

2.  Maintaining the Status Quo.  It is true that DOMA was enacted when it appeared that some of the states were about to recognize same-sex marriage, and DOMA was intended to prevent the federal government from recognizing them as well.  However, this cannot be characterized as "maintaining the status quo" because before DOMA the federal government allowed the states to define eligibility for marriage, including requirements for age, consanguinity, and even race.  Marriage was considered to be a matter confided to the states, not the federal government.  Judge White found that DOMA actually represented a break from the status quo, and a violation of the principle of federalism.

3.  Protecting the Institution of Marriage.  To the extent that this goal represents simply a moral judgment that same-sex unions are inferior and not worthy of protection, it is redundant of the "morality" argument disposed of above.  The government failed to offer any evidence that same-sex marriages harm opposite-sex marriages or otherwise devalues the institution of marriage in any concrete way.

4.  Promoting Effective Childrearing.  Ms. Golinski offered substantial expert evidence buttressed by dozens of published studies proving that same-sex couples are just as effective at parenting as opposite-sex couples.  The only evidence offered in rebuttal were three non-scientific, non-peer-reviewed opinion pieces that were either published in the popular press or not published at all.  Furthermore, the government attorneys failed to answer precisely how the children of opposite-sex couples would benefit by excluding same-sex couples from federal benefits; nor did they justify the dramatic harm that DOMA imposes on the children of same-sex couples.

5.  Conservation of Federal Resources.  Federal attorneys suggested that federal recognition of same-sex marriages would drain federal resources.  However, the court noted that while conserving government funds may be a legitimate government interest in and of itself, this goal may not be achieved by arbitrarily depriving a group of people from eligibility for funding.

Judge White ruled that none of the foregoing governmental interests were sufficient to satisfy intermediate scrutiny or even the rational basis test.

In closing, Judge White explained that it was not necessary for him to find that DOMA was motivated by hatred; it was sufficient to note that it was the product of ignorance (my word, not his).  He stated:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.  Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

Strictly speaking, the district court's decision in Golinski does not mean that under the 14th Amendment the states are required to recognize same-sex marriage.  The court's decision simply holds that under the 5th Amendment the federal government may not refuse to recognize same-sex marriages that some states have already chosen to acknowledge.  This is the position that President Obama currently maintains.  The legal standards for equality under the 5th and 14th Amendments are the same, however, and the reasoning of the district court if applied against the states would have the effect of striking down state DOMA's as well.