Today Federal District Judge Jeffrey S. White (Northern District, California) ruled that DOMA was unconstitutional as applied to Karen Golinski, a staff attorney at the United States Court of Appeals for the Ninth Circuit. This is a great opinion, explaining cogently why classifications on the basis of sexual orientation are entitled to heightened scrutiny. For anyone looking for substantial authority to support filing your federal taxes as married, this opinion is a strong plus.
You can read the full decision here. I have two favorite parts of the opinion:
1. There is old Ninth Circuit authority holding that gays and lesbians are not entitled to heightened scrutiny under the 14th Amendment. That case, High Tech Gays v DISCO, was decided in 1990, at a time when Bowers v. Hardwick was still good law. Judge White carefully explains that with the overruling of Bowers by Lawrence v Texas it is no longer tenable to say that High Tech Gays is good law. He also points out that no federal appellate court has decided the heightened scrutiny question post Lawrence. As a result he declares that High Tech Gays is no longer valid and he is thus free to determine what level of scrutiny to apply. He determines that gays and lesbians are entitled to heightened scrutiny.
2. In his discussion of whether gays and lesbians are politically powerless (one of the four factors traditionally used to determine whether a group is entitled to heightened scrutiny) he gives us the arguments that BLAG made. (Remember the Justice Department is no longer defending DOMA and so BLAG – the bipartisan legal advisory group in Congress – is the entity arguing that DOMA is constitutional.) Here’s what he has to say about their argument:
BLAG argues that the current Administration’s reversal of position with regard to defending DOMA in various courts nationwide is evidence that gay and lesbian individuals have achieved political power. BLAG contends that the decision followed President Obama’s receipt of a letter from the Human Rights Campaign seeking to change the Administration’s position. … However, this contention is not supported by the evidence in the record. First, this letter was sent nearly two years prior to the announcement of the Administration’s current opinion. … Second, the Department of Justice functions under an independent obligation to assess the constitutionality of a statute it has been tasked to defend. By its own terms, the announcement by the Department of Justice was based not on a political calculation, but rather was an independent assessment of the constitutionality of DOMA. … The contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.
And perhaps my favorite quote is where Judge White uses testimony from the Roberts confirmation to support his ruling:
This case was presented by an employee of the judicial branch against the executive branch, which ultimately determined it could not legitimately support the law. The law was then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and, where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. … it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Nominee).
Finally, Judge White, to be safe, also analyzes DOMA under rational basis and finds it unconstitutional under that lower level of scrutiny as well. Great opinion.
