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Queer Talk: Bush Appointee Finds DOMA Unconstitutional

Joyce L. Arnold, Liberally Independent, Queer Talk, equality activist, writer.

Yesterday the story broke that Judge Jeffrey White of the U.S. District Court for Northern California ruled that the Defense of Marriage Act (DOMA) is unconstitutional. White is a 2002 George W. Bush appointee, and the second federal judge to rule against DOMA. In July 2012, a federal district court judge in Boston made a similar ruling.

Via Think Progress, White ruled that DOMA

… violates the Constitution’s equal protection clause in a case brought by Karen Golinski. Golinski, represented by Lambda Legal, ‘was denied spousal health benefits by her employer, the U.S. Ninth Circuit Court of Appeals in San Francisco.’ … The decision represents a serious setback for House Speaker John Boehner (R-OH), whose Bipartisan Legal Advisory Group (BLAG) defended DOMA after the Obama administration announced it would no longer defend the law.

Read the full opinion here

No doubt an appeal will follow. More details from Think Progress:

The Court has ruled that considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny for all four factors that determine such scrutiny:

HISTORY OF DISCRIMINATION: 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.

ABILITY TO CONTRIBUTE TO SOCIETY: 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.

IMMUTABILITY: Regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchangeable, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

POLITICAL POWERLESSNESS: The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power… Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority.

This most recent decision added something important. From Think Progress:

The Court rebuked Congress for BLAG’s argument that caution should be taken with issues that can be socially divisive:

‘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. 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.

More, from Keen News:

… White … said the legislative history of DOMA is ‘replete with expressed animus toward gay men and lesbians’ but he said he was ‘persuaded that something short of animus may have motivated DOMA’s passage.’ That ‘something short of animus,’ he suggested, might have been a simple lack of ‘careful, rational reflection’ or ‘instinctive’ reaction to ‘people who appear to be different….’

Tara Borelli, the Lambda staff attorney who led Golinski’s challenge, said White’s decision ‘spells doom for DOMA.’ But the decision will almost certainly be appealed given that House Speaker John Boehner has committed to funding a legal defense of the law. …

Seeming to anticipate criticisms that his opinion rendered him an ‘activist judge,’ White noted, ‘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.’

For many of us, these are all “duh” points, but that only makes this decision that much more significant. As this and other marriage related cases make their way through judicial, legislative and referendum processes, the accumulation of equality wins — marriage and otherwise — and of the arguments upon which those wins are based continue to build the case for LGBT equality in general. Opposition isn’t going to disappear, and there are very big questions about how the Supreme Court will rule when it finally makes, in this case, a marriage equality decision. But the judgments at the grassroots level are increasingly in favor of equality, and eventually, I think that will prevail.

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11 Responses to Queer Talk: Bush Appointee Finds DOMA Unconstitutional

  1. secularhumanizinevoluter February 23, 2012 at 10:28 am #

    “For many of us, these are all “duh” points, but that only makes this decision that much more significant.”

    ONLY those with functioning brains and an appreciation for that lil “justice for all” thingy.

    • Joyce Arnold February 23, 2012 at 10:33 am #

      Well, yes, that little “‘justice for all’ thingy” does seem to be selectively interpreted by quite a few people.

  2. Lake Lady February 23, 2012 at 10:39 am #

    Maybe the inevibility of civil rights for the LGBT community is what is really working up the fundies to their current levels of insanity. They can’t stop it and they know it,demographics is going to win if nothing else does.

    • Joyce Arnold February 23, 2012 at 11:12 am #

      I think that has a great deal to do with it, yes. And since “targets” are more or less interchangeable, if
      “the homosexuals” aren’t providing something they can scream about, there’s always “the women.” Or “the illegals.” Or the Occupy edition of “the dirty hippies.” …

  3. Taylor Marsh February 23, 2012 at 11:58 am #

    It will prevail, Joyce, except with religious conservatives, who won’t let go of the 1950s.

    A time they romanticize because of the male’s place in our culture, but also male-dominated religious institutions & the hold they had on women back then, which is no longer the case.

    I write from this standpoint, because until religious conservatives see women as equal they certainly won’t recognize the LGBT community as equal, though it’s clear the majority is not going to wait for them.


    • Joyce Arnold February 23, 2012 at 2:33 pm #

      Yep, and it also points to a big part of the reason these people are extra ingnorant and frightened of the transgender communities — combine gender and orientation in wasy that don’t fit their standard, and they get very nervous and confused.

  4. fairmindedindependent February 23, 2012 at 12:14 pm #

    Great article Joyce Arnold, speaking of Marriage Equality, I was watching Morning Joe this morning and Governor Chris Christie was on talking about himself and the veto he gave to marriage equality and all Jonathan Capehart was on and him and Chris Christie went at it. Mika was trying to tell Joe Scarborough not to bring up the marriage equality issue, I guessed she knew it was going to get heated which it did. Jonathan didn’t let Chris Christie by with all this crap, even when Chris Christie was trying to yell over him. It seemed the panel was ticked at Joe Scarborough for bringing it up and John Heilemann even accused Joe of starting stuff. It was a pretty good show. Joe and Christie got ticked and brought up that President Obama is against Gay Marriage also, which is true, but at least he is not wanting a constitutional amendment to ban gay marriage like alot of Republican lawmakers do. I am also not happy that President Obama is against marriage equality when there are brave democrats that are standing up for marriage equality like Washington States Governor and others, he needs to take a page from these other democrats, instead of just worrying about his re-election, but maybe he really is against marriage equality, if so, thats really sad !!

    • Joyce Arnold February 23, 2012 at 2:41 pm #

      Hey fairminded, thanks. Obama’s lack of leadership, or his timidity, or his “pragmatism,” or his “God is in the mix” beliefs, or whatever contributes to his failure to, as John Aravosis has been saying for a while now, “evolve already!”, is wearing very thin. I don’t think he’s going to take that final step before November, not directly, and not in any out front actions. He’ll sign the repeal of DOMA, should that happen in a second term (I’m afraid that’s unlikely, the repeal I mean; I think the second term will occur), and will be hailed for his support of LGBT equality by way of “a Republican wouldn’t have done that.” Which to this point is certaily true, and given the GOP Wannabe’s, will be true for a long time. But yes, I wish Obama the “fierce, fierce advocate” would put in an appearance.

  5. secularhumanizinevoluter February 23, 2012 at 12:50 pm #

    “Jonathan didn’t let Chris Christie by with all this crap, even when Chris Christie was trying to yell over him.”

    That about sums up this bloviating assmonkeys political skills. I get a kick out of the “let the people vote on it” meme….so we let people vote on whether other folks get their constitutional rights?!!!!

  6. casualobserver February 23, 2012 at 10:10 pm #

    While the ruling is certainly nothing adverse to SSM, it also isn’t much of a watershed event. After all, since the head of the Executive branch publicly deemed Section 3 unconstitutional, the notion that a department thereunder could assert otherwise is preposterous on its face. Ergo, the summary judgement ruling. The only thing that makes this susceptible to a successful appeal is not the ruling, but rather the pretentious legal basis attached to the conclusion, which was totally unnecessary for a summary judgement. Applying the heightened scrutiny test at this level is unwarranted and sets forth a number of highly challenge able notions for no purposeful reason to reach the ruling.

    By the way, yes, it was a Bush appointee, but admittedly, the only candidate on the slate put forth at the time that Boxer and Feinstein said they would not attempt to block. Hardly the credentials to suggest he was Bush’s first choice.

  7. secularhumanizinevoluter February 24, 2012 at 5:30 am #

    How does it feel to be, once again, on the losing side in the culture war?

.... a writer is someone who takes the universal whore of language
and turns her into a virgin again.  ~ erica jong