Judge finds DOMA discriminatory

Joe Davidson
Columnist February 27, 2012

Score another victory for human rights.

Last week, a federal district court judge in San Francisco ruled in favor of granting health insurance benefits to the same-sex spouse of a federal employee.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Judge Jeffrey S. White, who was nominated to the bench by President George W. Bush, ruled that the Defense of Marriage Act (DOMA) “unconstitutionally discriminates against same-sex married couples.”

The ruling potentially could have meaning that goes well beyond Karen Golinski, the federal court employee who sued the government when it would not allow her wife, Amy Cunninghis, to be covered by the Federal Employees Health Benefits Program. The ruling says that the Office of Personnel Management, which had no comment, cannot stop Golinski from getting benefits for her wife, but it’s not clear when Cunninghis will be covered. Lawyers for House Republicans say they will appeal the ruling.

White, in strong, clear and convincing language, knocked down arguments in favor of DOMA like straw men in a stiff wind. One by one, piece by piece, he took apart positions supporting the law, which defines marriage for federal purposes as a union between a man and a woman.

“The opinion is really thorough and well-reasoned,” said Rita Lin, Golinski’s attorney. “I think it is very well positioned for appeal.” The Web site for Lamba Legal, which also represents Golinski, has several documents related to her case.

White found that “DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation.” A key part of his ruling said subjecting DOMA to “heightened scrutiny” is appropriate, while adding that it also doesn’t meet a lower level of scrutiny. Heightened scrutiny means DOMA advocates must show it is “substantially related to an important governmental objective.”

White then looked at DOMA’s legislative history, noting its “expressed animus against gay men and lesbians,” and found no important governmental objective. Congress listed four governmental interests supposedly protected by DOMA and White demolished them point by point.

●“Responsible procreation and child-rearing.” White cited more than 30 years of research that have “overwhelmingly demonstrated that children raised by same-sex parents are as likely to be as emotionally healthy and educationally and socially successful as those raised by opposite-sex parents.”

●“Nuturing the institution of traditional, opposite-sex marriage.” White said “DOMA does nothing to encourage same-sex married individuals to marry members of the opposite sex . . . . Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married.”

●“Defending traditional notions of morality.” White was succinct: “Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny.”

●“Preserving scarce government resources.” There is “no evidence,” White wrote, “to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc. In addition, the preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program.”

The legislative history, White said, includes members of Congress calling homosexuality “immoral,” “depraved,” “unnatural” and “based on perversion.”

Arguing for DOMA was the Bipartisan Legal Advisory Group (BLAG), which intervened in the case last year after the Obama administration decided it could no longer enforce a law that so blatantly discriminates against gays and lesbians. BLAG, which officially includes the top three Republicans and the top two Democrats in the House, was formed in March to continue the fight for DOMA. But to call it bipartisan is a joke. It really only represents the GOP. It hasn’t met since March. Last week, the office of House Democratic Leader Nancy Pelosi (Calif.) criticized House Republicans for spending $1.5 million to back DOMA, without any vote of the group and “on a purely partisan basis, to defend discrimination.”

The office of Speaker John A. Boehner (R-Ohio) had no comment on the case and lawyers representing BLAG did not respond to calls.

Other than the ruling itself, perhaps the most important part of the case was the brief the Obama administration submitted in July. In arguing that DOMA is unconstitutional, the Justice Department said “the federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”

The Federal Diary will examine federal job discrimination against gays and lesbians in a future column. Here’s one tidbit from the government’s brief: the Postal Service, in support of the FBI, established a “watch list on the recipients of physique magazines. . . . The end result was thousands of men and women forced from their federal jobs based on suspicion that they were gay or lesbian.”

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