Bush-Appointed Federal Judge Strikes Down DOMA

This is getting almost comical. On Tuesday, yet another federal judge ruled the so-called Defense of Marriage Act (DOMA) unconstitutional. This time it was in the case of a federal lawsuit filed by Gay and Lesbian Advocates and Defenders (GLAD) representing a number of same-sex couples married in Connecticut who are suing the federal government for denying them access to federal benefits provided to other married couples under the discriminatory provision of Section 3 of DOMA.

The name of the case is Pedersen v Office of Personnel Management and the name of the federal judge is Vanessa L. Bryant, an appointee to the district court for Connecticut by President George W. Bush in 2007.

Ruthann Robinson, a well-regarded constitutional law professor, provides this analysis of Bryant's voluminous (over 100 pages) and thoughtfully reasoned opinion:

Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation.  Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny."  She then quickly defaulted to another rationale:  "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny." 

Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute.  The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources."  In litigation, BLAG asserted five: 1)  To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2)  To protect the public fisc; 3)  To maintain consistency and uniformity with regard to eligibility for federal benefits;  4)  To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5)  To recognize an institution designed to ensure that children have parents of both sexes.  One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.

Chris Geidner has the full text of today's ruling. It will be up to the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives, represented by superlawyer Paul Clement to decide when or whether they want to appeal the ruling to the 2nd U.S. Circuit Court of Appeals, or perhaps bypass the federal appellate level and appeal to the Supreme Court. There are already 9th U.S. Appellate Circuit and 1st U.S. Appellate Circuit DOMA cases pending before the nation's highest court, plus several other cases at the district court level.

At this point it is only a matter of when, not whether, DOMA will cease to be legally enforceable.