Another Court Finds DOMA Unconstitutional

I have long held the view that the federal Defense of Marriage Act ("DOMA") is unconstitutional for several reasons. First, it flies in the face of the Equal Protection Clause and Due Process Clause of the U. S. Constitution. Second, it singles out a minority for special punishment because of their non-conformance with a particular set of anti-gay religious beliefs in violation of the guarantee of religious freedom under the First Amendment of the U. S. Constitution. Now, a second U. S. District Court - this one in California - has held that DOMA is unconstitutional on a similar basis to a U.S. District Court in Massachusetts in 201. One can already hear the shrieking of the Christianists bemoaning "activist liberal judges." Except the judge in today's ruling is an appointee of George W. Bush and, therefore, no bleeding heart liberal. Here are highlights from Politico on today's ruling:

Another federal judge has found unconstitutional a key part of the Defense of Marriage Act, the federal law which forbids providing federal government benefits to same-sex spouses.

U.S. District Court Judge Jeffrey White, who sits in San Francisco and was appointed to the bench by President George W. Bush, issued the ruling Wednesday afternoon in a case involving federal judicial law clerk Karen Golinski's request for benefits for her female spouse. White said the stated goals of DOMA, passed in 1996 and signed by President Bill Clinton, could not pass muster under a so-called "heightened scrutiny" test or even a lower "rational basis" threshhold.

"The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is 'to define the liberty of all, not to mandate our own moral code,'" White wrote. "Tradition alone, however, cannot form an adequate justification for a law....The 'ancient lineage” of a classification does not render it legitimate....Instead, the government must have an interest separate and apart from the fact of tradition itself."

White's 43-page decision (posted here) is similar to a ruling from a federal judge in Massachusetts in 2010, who also struck down an aspect of DOMA.

In White's ruling, he also gave an unusual back of the hand to the Chief Judge of the Ninth Circuit, Alex Kozinski, who ruled at an earlier administrative stage of the dispute that federal personnel managers had authority to cover Golinski's spouse as a non-spousal member of her family. White called that reasoning "unpersuasive."

Here is some of the on point analysis from White's opinion that I find most interesting and which will drive the Christofascists berserk:

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples. Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasi-suspect class entitled to heightened scrutiny, the Court must look at various factors.

The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political power of the subject class.

The Supreme Court has placed far greater weight on two factors: whether the group has been the subject of long-standing and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups.

The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination. . . . . Similarly, 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. . . . . Further, the consensus in the scientific community is that sexual orientation is an immutable characteristic.

The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it. Therefore, this factor weighs in favor of the application of heightened scrutiny.

Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, the legislative history is replete with expressed animus toward gay men and lesbians. The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” . . . . 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.”

Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny. “The animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in the Congressional record.” . . . . The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is “to define the liberty of all, not to mandate our own moral code.”

“[T]he fact that the governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

[T]he Court finds that Congress’ justification of promoting traditional notions of morality does not satisfy rational basis scrutiny. See Lawrence, 539 U.S. at 582 (holding that “[m]oral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”) Also, if the denial of benefits is designed to defend traditional notions of morality by discouraging same-sex marriage, “it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the ‘bare desire to harm’ same-sex couples.” In re Levenson, 587 F.3d at 932 (emphasis in original). This is forbidden by the Constitution.

Of course, the reasoning set out in White's opinion applies equally to every state constitutional amendment - including the vile Marshall-Newman amendment here in Virginia - that has denied same sex relationships of legal recognition. They are all unconstitutional in my view.