Sunday, February 26, 2012

Conservative Federal Judge Strikes Down DOMA

Karen Golinksi legally married her partner Amy in 2008 and literally
 made a federal case of getting health benefits for her spouse
Wow! Clearly, the days for which the so-called Defense of Marriage Act will remain viable in the United States Code are numbered, and appears to be decreasing rapidly. Recall that two weeks ago the 9th U.S. Circuit Court of Appeals struck down Proposition 8. This week, a federal judge named Jeffrey White appointed by Republican president George W. Bush issued an opinion in Golinski v Office of Personnel Management in which he summarily strikes down Section 3 of DOMA as violating Karen Golinski's constitutional right to receive federal benefits based on her legal marriage to her wife Amy.

The case involves Karen Golinski, who married her longtime partner in California in 2008 when same-sex marriage was legal between June and November. She has been an employee of the 9th U.S. Circuit Court of Appeals for decades and so when she got married she asked that her employer put her spouse on her health benefits plan like her heterosexual co-workers have been able to do. As a federal employee, but of the Judicial Branch, her case raised a host of interesting constitutional issues. Chief Judge of the 9th Circuit, Alex Kosinski, twice issued orders to the Office of Personnel Management (in the Executive Branch) to process Golinski's request, which were ignored.

Golinski was represented by MadProfessah friend Tara Borelli of Lambda Legal Defense and Education Fund and pro bono by Morrison Foster. Amazingly, the judge ruled based just on the briefing on motions  for summary judgment (from the good guys) and motion for dismissal (from the bad guys represented by Paul Clement and the House Republican majority led by Speaker John Boehner).

U.S. District Court Judge White's opinion is remarkable for many things, as Ari Ezra Waldman notes at TowleRoad:
First, Judge White declared that discrimination on the basis of sexual orientation merits heightened scrutiny in an equal protection analysis. 
Second, the court distinguished old and outdated precedent that Judge Randy Smith recently used in his dissent in Perry v. Brown, highlighting the doctrinal vacuum that is denial of gay rights. 
Third, in dismantling the proffered and any conceivable justification for DOMA Section 3, the court authoritatively rejected House Republican attempts to buttress DOMA with recourse to certain conceptions of morality. 
Fourth, Judge White's reliance on the other DOMA cases and Ninth Circuit precedent in other gay rights cases emphasizes the primacy of a federal litigation approach in our quest for marriage recognition.
I encourage you to read the rest of Ari's insightful analysis as well as Chris Geidner's at Poliglot. What is not becoming remarkable is the sight of federal judges ruling that DOMA is unconstitutional. Judge White of the 9th Circuit follows Judge Joseph Tauro of the 1st Circuit who struck down DOMA in July 2010. The decision in Gill v. Office of Personnel Management is still on appeal before the 1st U.S. Circuit Court of Appeals.

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