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:

Golinski v. Office Of Personnel Management et al

FILED UNDER: Gender Issues, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Peacewood says:

    I think judicial decisions, in general, are overlooked and underreported.

    With perhaps the exception of Citizens United, just about every far-reaching judicial decision hasn’t garnered enough ink. The eminent domain decision (Pfizer) was absolutely criminally underreported for its effect, as well.

  2. @Peacewood:

    Well to be fair, an opinion from the District Court Judge probably isn’t going to get as much attention as on from the Court of Appeals or, obviously, the Supreme Court.

  3. It’s also worth noting that Chief Judge Alex Kozinski, the boss of the employee in question and whom supported his employee’s request, is an appointee of Ronald Reagan.

  4. Hey Norm says:

    And yet every member of the Clown Car Posse continues to swim upstream against the current of modernity.

  5. Barb Hartwell says:

    It may take a few years but I feel many of those who appose it will fight forever to stop it. As long as we have radical religious groups we won`t get past things like this. It`s sad.

  6. Gromitt Gunn says:

    I’ve been saying for years (I came out in the late 80s) that coming out the closet and being open and honest about one’s life with those most important is as powerful for LGBTs as all of the legal and legislative wrangling.

    Our communities have a distinct advantage in terms of civil rights pursuits that many others do not, in that we are the brothers, sisters, children and grandchildren, aunts and uncles, parents and grandparents of those who make up the majority. It took a few decades, but at this piont almost everyone who is a regular voter or who wanders the halls of power has someone important to them by marriage or by blood that is directly impacted by DOMA or DADT or (hopefully someday) ENDA.

    I think that is reason why it seems like we LGBT folks have been making progress so quickly, since that threshold of awareness was crossed. I think for most people there is a big psychological difference between realizing that your black/hispanic coworker is being wronged and your child or your sibling or your favorite uncle is being wronged. The latter is much more immediate, much less of an intellectual exercise.

    Apologies for longwindedness. Hopefully not too much incoherence. Heh.

  7. OzarkHillbilly says:

    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?

    To hear people around here talk, it is more likely that homosexuality will warrant the death penalty.

  8. OzarkHillbilly says:

    @Gromitt Gunn:

    The latter is much more immediate, much less of an intellectual exercise.

    Nail? Meet Hammer.

  9. Hey Norm says:

    “… As long as we have radical religious groups…”

    like the Republican Party.

  10. Ron Beasley says:

    Oh my God – Satan has even gotten to Republican appointed judges.

  11. Gulliver says:

    Here’s to the 42 states that have so far refused to let a small minority define their desires as a civl right simply because it makes them feel good.

    Let the abuse begin 🙂

  12. Barb Hartwell says:

    @Gromitt Gunn: I have gay and lesbian friends and family and their lives are no different than most other people except for the bias they face so often. I listened to Laura Ingrahm talk about her brother and how her hatred for him being gay and I thought how can this be, a sister not talking to her own brother for several years just because he was gay. They have made up but her views have not changed It is a sick way of life. People like this are dangerous as they stir up even more hate.

  13. David says:

    @Gulliver: No abuse, just pity.

  14. mattb says:

    Reminder that @Gulliver is the same idiot who said that conservatives never attempt to enforce their religious ideas through legislation.

  15. An Interested Party says:

    Here’s to the 42 states that have so far refused to let a small minority define their desires as a civl right simply because it makes them feel good.

    And here’s to the one court that refused to let a possible majority define their desires as law simply because it allowed them to legalize their bigotry…

  16. a snarky bastard says:

    @Gulliver: Bigot

  17. Just nutha' ig'rant cracker says:

    @a snarky bastard: The term you’re looking for is “homophobe.” Try to be correct in abusing others please; it makes you look passingly intelligent.

  18. Delmar says:

    This issue needs to be decided at the local level – probably best at the county level. Individual counties have differing laws and regulations concerning many things; alcohol sales, speed limits, public library hours (a county nearby even still has laws that regulate business hours and alcohol sales on Sundays). This issue should be decided by the voters, not the president, Congress, governors, or Federal judges. People should understand that not all communities wish to be like San Francisco.

  19. David says:

    @Delmar: What do you not understand about where marriage laws are at? Just a clue, its not at the county level.

  20. Delmar says:

    I understand that marriage laws are now usually made at the state level, but my solution here would be to let individual counties opt out. This would make everyone happy.
    Under no circumstances should the Federal government get into marriage in any way. They have enough problems that take priority over this sort of personal social life issue.

  21. mattb says:

    @Delmar:
    Why do I suspect that if it was to go to the county level and counties began to approve it, your line of thought would move to “it should be decided on a town by town (later village by village basis).”

    Here’s the simple truth, as long as spouses are granted specific rights and affordences simply by being spouses, then it becomes a nightmare to try and do this sort of granular changes.

    Under no circumstances should the Federal government get into marriage in any way.

    Given everything tax law to visitation rights, pretending that the feds can get out of the marriage game in our modern, networked culture, is a pipe dream.

  22. An Interested Party says:

    This issue should be decided by the voters, not the president, Congress, governors, or Federal judges. People should understand that not all communities wish to be like San Francisco.

    Brilliant logic…thinking like this would allow some places in this country to still have anti-miscegenation laws…people should understand that not all communities wish to be like Birmingham circa 1950…sorry pal, but civil rights are guaranteed by the Constitution, not decided by the voters…

  23. If someone opposes the liberal agenda they are called racists, bigots, homophobes, etc. How convenient for liberals.

  24. David says:

    @Stanford Matthews: It is, since most of the opposition to basic civil rights is based on racist, homophobic or bigoted opinions.

  25. @David:

    To suggest one’s personal preferences are a ‘basic civil right’ opens the door to any choice being defended as such. That is to say if I feel someone should be removed from society that person’s homicide is my ‘basic civil right’. Or because someone is an alcoholic drinking to excess is a ‘basic civil right’..

  26. David says:

    @Stanford Matthews: Being gay is not a preference.