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February 22, 2012

Another federal judge finds DoMA unconstitutional

Judge Jeffrey White issued an opinion today in Golinski
Golinski v. OPM, ruling that DoMA is unconstitutional under the Equal Protection Clause. Golinski, a federal government employee, sought health insurance coverage for her spouse; the two were married in California during the period when same-sex marriages were legal there (after the California Supreme Court ruled that the gay exclusion was unconstitutional and before the voters amended the state constitution).

The outcome is not a surprise. Judge White's inclinations were clear from the questions for counsel that he circulated prior to the oral argument in December. 

The opinion declares both that sexual orientation classifications are subject to heightened scrutiny and that DoMA is unconstitutional even under a rational basis standard. Judge White clearly believes in hedging his bets.

From MetroWeekly:

...Golinski ... is represented by Lambda Legal Defense and Education Fund. Because President Obama and the Department of Justice have stopped defending Section 3 of DOMA in court challenges, the Bipartisan Legal Advisory Group -- led by House Republican leadership -- had opposed Golinski's request in court.

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies -- as urged by the DOJ -- and noting that it might not even pass rational basis -- the lowest -- legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

Later, he wrote:

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.


The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

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).

In conclusion, White finds and orders:

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan.


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Question: in his analysis, judge white says that the 9th circuit determined that witt would not have passed rational basis review.

In the section "The Question of Level of Scrutiny is Still Open", white writes: "And the Ninth Circuit in Witt v. Department of Air Force merely found, in the context of military policy where judicial deference “is at its apogee,” that the military’s policy of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir.2008)."

Some argue that this is an erroneous interpretation because of this snippet:

"We next turn to Major Witt’s Equal Protection Clause claim. She argues that DADT violates equal protection because the Air Force has a mandatory rule discharging those who engage in homosexual activities but not those “whose presence may also cause discomfort among other service members,” such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing “whether Bowers itself ha[d] continuing validity”). We thus affirm the district court’s dismissal of Major Witt’s equal protection claims."

My question is: was witt indeed misinterpreted by white? And if so, what are the consequences of this on the validity of his ruling?

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