Another Step In The Right Direction On Marriage Equality
Another Federal Court rules in favor of marriage equality, and the biggest news is how unsurprising the outcome of the case is.
Earlier this week, a Federal District Court Judge appointed by George W. Bush ruled in favor of a federal employee seeking spousal benefits for her wife and declared that Section Three of the Defense Of Marriage Act to be unconstitutional:
SAN FRANCISCO — The government cannot deny health benefits to the wife of a lesbian court employee by relying on the 1996 law that bars government recognition of same-sex unions, a federal judge has ruled.
In Wednesday’s ruling, U.S. District Judge Jeffrey White said the government’s refusal to furnish health insurance to Karen Golinski’s wife is unjustified because the Defense of Marriage Act unconstitutionally discriminates against same-sex married couples.
Golinski, a staff lawyer for the 9th U.S. Circuit Court of Appeals, has been trying to secure spousal benefits for her wife, Amy Cunninghis, since shortly after the couple got married during the brief window in 2008 when same-sex marriages were legal in California. Her boss, Chief Judge Alex Kozinski, approved her request, but the Office of Personnel Management ordered Golinski’s insurer not to process her application.
After Golinski sued, the Department of Justice originally opposed her in court but changed course last year after President Barack Obama and Attorney General Eric Holder said they would no longer defend the Defense of Marriage Act.
“The Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law … by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse,” White wrote in a 43-page decision that marks the third time in less than two years a federal court has declared the act unconstitutional.
When White heard the case in December, the head of the Justice Department’s civil division, Tony West, joined her lawyers from the gay rights legal group Lambda Legal in arguing on Golinski’s behalf, leaving the job of defending DOMA to a lawyer hired by a House of Representatives group. The lawyers representing the Bipartisan Legal Advisory Group convened by House Speaker John Boehner did not immediately respond to an email to their offices sent after business hours Wednesday.
Former speaker and Minority Leader Nancy Pelosi issued a statement saying White’s ruling demonstrated “that the House is not united in this case, that the BLAG lawyers do not speak for Congress, and that BLAG’s intervention remains a waste of taxpayer resources.”
Wednesday’s ruling is the latest in an unbroken string of judicial setbacks for the Defense of Marriage Act, which Congress approved when states first started considering allowing gay and lesbian couples to get married. The law defines marriage as a union between a man and woman, and prohibits the government from granting benefits such as Social Security and Medicaid to same-sex couples.
A federal judge in Massachusetts, where same-sex marriage has been legal since 2004, ruled in July 2010 that the law is unconstitutional because it interferes with the right of a state to define the institution. A year later, 20 of the 24 bankruptcy judges based in Los Angeles ruled that the act violated the civil rights of a married gay couple who were denied the right to file a shared bankruptcy plan.
Last week, the Obama administration said it was extending its decision to stop defending the law to issues affecting actively serving military personnel and veterans in same-sex relationships.
I’ve embedded the opinion below, but there’s honestly nothing remarkable about it that we haven’t already seen in the other recent legal decisions on same-sex marriage in general and DOMA specifically, as the Court’s conclusion makes eminently clear:
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).
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).
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.
It’s a simple, straightforward legal argument, really, and one that seems likely to succeed in the end even if it takes several more years of trials and appeals, it seems inevitable at this point that the anti-DOMA argument is going win out in the end. DOMA, or at least Section Three of DOMA which attempts to codify in Federal law the definition of marriage as only being between a man and a woman, is doomed, and when it goes down it’s likely to be the beginning of a process that leads to the end of restrictions against same-sex marriage in other parts of the country. This will happen, I am guessing, not just because of the legal precedent that will be set by Supreme Court case declaring Section Three unconstitutional, but also because of the political energy it will give to the opponents of same-sex marriage allowing them to push marriage equality laws through in other states. Just in the past week, we’ve seen marriage equality become the law in Washington State and in Maryland, and nearly in New Jersey. Illinois may be the next state to take the issue up. Notwithstanding the resistance that will no doubt be mounted by social conservatives, and the extent to which they have moved the goalposts on this issue, the trend is clearly in the direction of marriage equality.
E.J. Graff comments on what may be the most remarkable thing about this week’s decision:
The Prop 8 case gets all the attention because of its splashy lawyers, but (God willing) that result is going to be confined to California. These DOMA cases are more important and more likely to go up.
Ten years ago, a decision like this would have been an excuse for a wave of antigay referenda. This week, it did not even rate a mention on the New York Times‘ front page. I just can’t shake my head often enough. DOMA is coming down. Here’s the only question left: Three years? Five years?
I’m guessing that it might be a little bit longer than three or five years. The court system doesn’t change radically overnight and political change tends to move slowly. Nonetheless, in the 15 years that have passed during which DOMA has been the law of the land we have undergone a remarkable change. Eight states and the District of Columbia now recognize same-sex marriage. A number of other states have civil unions or at least grant homosexuals some measure of the rights enjoyed by married couples. Culturally and legally, that is a remarkable amount of change in just 15 years, especially considering the fact that a good part of that 15 years included a time when many states were adopting laws against same-sex marriage that hadn’t existed before. Since just 2003 when the Massachusetts Supreme Judicial Court ruled that states laws barring same-sex marriage unconstitutional, though, we’ve seen the tide completely turn on this issue both politically and legally. Is there really any doubt that, in another five or ten years, most if not all of the states in the union will have legalized marriage equality? It wouldn’t surprise me at all, but even if it takes just a little longer than that there’s no doubt where we’re headed, it’s just a question of how long it will take to get there.
Here’s the opinion: