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.