During the brief window in 2008 when the state of California permitted same-sex couples to marry, Karen Golinski and her longtime partner, Amy Cunninghis, were wed. Golinski, a staff attorney for the United States Court of Appeals for the Ninth Circuit, then sought, as most newly-married employees would, to add her new spouse to the health insurance plan. (The couple’s minor adopted child was already covered under Golinski’s “family” benefits.) The federal administrative office in charge of such matters refused the request, however, because of Section 3 of the Defense of Marriage Act (DOMA). Section 3 provides that, for any federal law purpose, only a union between one man and one woman can be treated as a “marriage.”
Golinski sued, alleging that this provision of DOMA is unconstitutional. The federal district court that heard the case just ruled in her favor, in Golinski v. OPM. The court ruled, importantly, that statutory classifications that are made on the basis of sexual orientation—for example, a statutory rule that heterosexuals can marry but homosexuals can’t—deserve heightened judicial scrutiny. And, the court reasoned, the federal government’s refusal to recognize same-sex marriages cannot survive such scrutiny.
Some Background on DOMA, the Defense of Marriage Act
As I have explained in greater detail in prior columns (here and here), Congress passed the Defense of Marriage Act (DOMA) in 1996, amid a growing fury over the possibility that Hawaii might legalize same-sex marriage, and that proponents would then somehow manage to foist it upon the rest of the country as well. DOMA was designed to prevent full faith and credit principles from being invoked to compel states to recognize same-sex marriages from other states, and also to protect the federal government from being compelled to recognize such marriages.
Section 2, which dealt with interstate marriage recognition, was at best a redundancy that purported to grant states a right they already had: the right to refuse recognition to marriages from sister states on grounds of public policy. And for many years after DOMA was enacted, Section 3 lay dormant because no state actually authorized same-sex marriage.
Then, in 2004, the first U.S. gay marriages took place, in Massachusetts. Since then, additional states have legalized same-sex marriage, including, in the last month, the State of Washington. (I discussed that development here) And in the last week, the State of Maryland, via this bill. Now, eight states and the District of Columbia have legalized same-sex marriage.
The Impact of—and the Challenges to—Section 3 of DOMA
Section 3 of DOMA matters very much, now that several states, including very populous ones like New York, allow the celebration of same-sex marriages. Also, because states do not restrict marriage to residents, anyone in the U.S. who can travel to one of those eight states or the District of Columbia can contract a valid same-sex marriage. There are now thousands and thousands of same-sex marriages that are valid in some states, but not in others, and that—due to DOMA—are not valid for any federal law purpose.
That last point is highly significant, since marital status matters for a huge number of federal laws and programs—such as immigration, Social Security, estate and income tax liabilities, eligibility for Medicaid, and burial in military cemeteries, to name just the most obvious examples. A report by the General Accounting Office in 2004 concluded that 1,138 federal laws provided benefits, rights, protection, or responsibilities that turned in some way on marital status. For federal employees, the rule of non-recognition for same-sex marriages means that employees cannot take advantage of benefits like spousal health insurance, as happened to Karen Golinski.
As a general matter, federal statutes do not provide their own definition of marriage. Federal laws, instead, typically defer to state determinations of marital status, as they do to state definitions of parent-child relationships. DOMA thus represents a departure from the usual rules, one that means that a person’s marital status may differ depending on why that status matters. As one might expect—but as Congress did not sufficiently anticipate—this presents a bureaucratic nightmare. It also is discriminatory, in that federal law picks and chooses among marriages based solely on the sex and sexual orientation of the parties involved, for little reason other than animosity towards the excluded group. Thus, not surprisingly, there have been several challenges to DOMA’s validity.
In two companion cases, Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management, which I analyzed in prior columns available here and here, a federal district judge in Massachusetts invalidated Section 3 of DOMA on the grounds that it infringes on state sovereignty. An appeal in these cases is pending, as are similar federal court challenges, Peterson v. OPM and Windsor v. United States.
In addition to these pending challenges, Section 3 of DOMA has been attacked from both the legislative and executive branches of the federal government. A bill to repeal DOMA, the Respect for Marriage Act, is pending in the U.S. Senate. Moreover, the Obama Administration declared in the “Holder Memo,” in February 2011, that it will no longer defend Section 3 challenges in court, at least in jurisdictions where there is no binding precedent regarding the appropriate level of scrutiny for sexual-orientation classifications. The federal government has also weakened DOMA by allowing exceptions to be made in specific administrative situations, or in individual cases.
The Ruling in Golinski v. OPM
The Golinski case is important, in part because of the government’s fractured role in it. The Department of Justice (DOJ) not only refused to defend Section 3, as it had promised in the Holder Memo, but it also took the anti-DOMA position one step further: It filed a brief arguing, affirmatively, that Section 3 is unconstitutional because it discriminates against gays and lesbians.
Readers may wonder, since DOJ was not defending the law, who was? The answer is the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), which is comprised of certain members of Congress who support DOMA. BLAG was granted permission by the court to intervene in the case and to defend the challenged provision.
The case also began with a complicated set of procedural twists and turns. Golinski originally sued on the theory that the denial of insurance was a violation of her government employer’s “employment dispute resolution” plan, which prohibited discrimination on the basis of sex and sexual orientation. Judge Alex Kozinski, a libertarian/ conservative Ninth Circuit judge who was sitting as administrator over this plan, agreed with Golinski and ordered the judiciary to add her wife to the insurance plan. That order then set off a complicated back-and- forth with the federal Office of Personnel Management, which said that it could not follow the order because of DOMA. Eventually, Golinski’s complaint was dismissed.
In an amended complaint, Golinski alleged that Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause because it discriminates on the basis of sexual orientation by refusing recognition to same-sex marriages. (The Fourteenth Amendment’s Equal Protection Clause was not invoked here, because it only applies to the states, not the federal government.)
Same-Sex Marriage in California
Recall that Golinski and her wife married in 2008, during a brief window when same-sex marriages could be contracted in California. Here, in summary, is the history of same-sex marriage in that state:
In response to a series of early gay-marriage challenges in the 1970s, California, in 1977, added the phrase “between a man and a woman” to its definition of marriage, which had previously only defined marriage as a “personal relation arising out of a civil contract.”
The California legislature then passed bills in 2005 and 2007 to grant same-sex couples the right to marry, but both were vetoed by then-Governor Arnold Schwarzenegger.
By referendum in a 2000 election, voters adopted Proposition 22, which amended the marriage statute to provide that “Only marriage between a man and a woman is valid or recognized in California.” This provision created an additional obstacle for advocates of same-sex marriage: Because it was adopted by referendum, the legislature could not repeal it without voter approval.
The California ban on same-sex marriage was invalidated, however, by the California Supreme Court, in In re Marriage Cases. In that case, the court held, among other things, that the ban constituted unconstitutional discrimination on the basis of sexual orientation. Central to that holding was the court’s conclusion that classifications on the basis of sexual orientation are “suspect” and therefore deserving of the highest form of judicial scrutiny.
For about six months after this ruling was issued, marriage licenses were issued to same-sex couples in California. About 14,000 gay marriages were solemnized. (These marriages are often referred to as the “interim marriages.”)
Then came the infamous Proposition 8, in which California voters, in the November 2008 election, amended the California constitution to ban same-sex marriage. That was the end—at least for the time—of same-sex marriage in California. (Golinski and her partner married after the court’s ruling, but before the passage of Prop 8. A later court ruling held that the marriages contracted during the window were valid.)
Prop 8 is the subject of its own litigation. A federal district court invalidated Prop 8 on federal constitutional grounds in Perry v. Schwarzenegger. A federal appeals court recently affirmed that decision in Perry v. Brown, ruling that there was no rational reason to restrict marriage to heterosexuals. It’s likely that the case will end up in the U.S. Supreme Court, but will likely first be reviewed en banc by the Ninth Circuit. (En banc review is review by a panel of judges larger than the three-judge panel that rendered the initial appellate decision in the case. This extra level of review only occurs if the appellate court so decides.)
What Level of Judicial Scrutiny is Warranted for Sexual-Orientation Classifications?
Under standard equal protection analysis (whether that analysis is conducted under the Fifth or the Fourteenth Amendment), a court must first identify the appropriate level of scrutiny, and then apply it to the challenged law. Classifications on the basis of race, national origin and religion are entitled to strict scrutiny (the highest form of judicial scrutiny); however, classifications on the basis of gender and illegitimacy are entitled to intermediate scrutiny, a lesser level of scrutiny. Finally, most statutory classifications are entitled only to rational basis review, a highly deferential standard that results most of the time in a win for the government.
The U.S. Supreme Court has never directly ruled on the level of scrutiny that is applicable to sexual-orientation classifications. In Romer v. Evans (1996), the Court struck down a Colorado referendum that prohibited municipalities from adopting anti-discrimination provisions to protect gays and lesbians. The Court, however, did not rule on the level of scrutiny per se; rather, it held that a law borne only of animus towards a particular group could not survive even the lowest level of scrutiny. The Court took a similar approach in Lawrence v. Texas (2003), in which it invalidated a Texas law banning same-sex sodomy without clearly articulating a heightened level of scrutiny.
Several of the cases challenging state bans on same-sex marriage have taken up the question of the proper level of scrutiny for sexual orientation classifications, but those challenges have all been brought under state law, rather than under the federal constitution. The federal court of appeals for the Ninth Circuit, however, has had the occasion to take up the scrutiny question in a gay marriage case that was brought under the federal constitution, but dodged the question.
The Golinski court proceeded through the traditional four-part test for heightened scrutiny: (1) existence of a history of invidious discrimination against those who have the characteristic at issue; (2) irrelevance of the characteristic to an individual’s ability to contribute to society; (3) the immutability of the characteristic; and (4) the degree of political powerlessness of the group of those who possess the characteristic. On all four prongs, the court found justification for heightened scrutiny of laws classifying on the basis of homosexuality.
In so finding, the court distinguished a prior ruling of the Ninth Circuit, High Tech Gays v. Defense Industrial Security Clearance Office, which held that homosexuals “lack the indicia of a suspect or quasi-suspect category.” But, the Golinski court explained, the foundations for that 1990 decision have “sustained serious erosion by virtue of more recent decisions” of the U.S. Supreme Court, such that it has been “effectively overruled by such higher authority.” The key shift was from Bowers v. Hardwick (1986), in which the Supreme Court refused to find a violation of substantive due process in a Georgia law banning sodomy, and its ruling in Lawrence v. Texas, in which it did find such a violation.
With High Tech Gays out of the way, the district court noted the lack of any binding precedent on the question of what the appropriate level of scrutiny was. It thus applied the traditional test, and concluded that gay men and lesbians “have experienced a long history of discrimination”; that “sexual orientation has no relevance to a person’s ability to contribute to society”; that whether or not sexual orientation is immutable, it is “so fundamental to one’s identity that a person should not be required to abandon it”; and that although gays and lesbians are “not completely politically powerless,” the “basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals.” Being forced to fight the consequences of an anti-same-sex-marriage law that the executive branch deems unconstitutional would seem to be at least some evidence of this last point.
Why Section 3 of DOMA Failed Heightened Scrutiny
After establishing that sexual orientation classifications trigger some form of heightened scrutiny—the ruling does not specify whether strict or intermediate scrutiny is appropriate—the court proceeded to apply the test for intermediate scrutiny. To survive this level of scrutiny, the government (here, BLAG) must show that the classification is substantially related to an important governmental objective. Although Congress was clearly motivated by animus and moral disapproval of homosexuality, it identified four interests that were purportedly advanced by DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources.
These interests may have seemed novel in 1996, but after more than 16 years of litigation over the validity of state bans on same-sex marriage, they seem tired. Courts have hashed and re-hashed these same interests, in cases that have reached diametrically-opposed conclusions. (Compare, for example, the reasoning of the Iowa Supreme Court, discussed here, with that of an appellate court in New York, discussed here.) But here, the Golinski court found each of these interests to have little merit.
First, the court found that concerns about child-rearing provide no justification for DOMA. All available evidence shows that gays and lesbians are “equally capable at parenting” as heterosexual parents, the court noted. And even if they weren’t, the court added, excluding homosexuals from marriage would have no effect on whether they became parents or not.
Second, the court found that “tradition alone . . . cannot form an adequate justification for a law.” And, even if it could, Section 3 of DOMA has no effect on whether marriage remains “traditional” or not. States control the issuance of marriage licenses. DOMA merely makes life difficult for same-sex couples who avail themselves of that right in various states. It does nothing to encourage heterosexual marriage, nor, realistically, does it do anything to deter same-sex marriage.
Third, the court found that basing “legislation on moral disapproval of same-sex couples does not pass any level of scrutiny.” As the Supreme Court has articulated in cases like Romer and Lawrence, neither the desire to “harm a politically unpopular group,” nor mere moral objection, can justify a law for equal protection purposes.
Fourth, and finally, the Golinski court found that there was no evidence in the record to suggest that denying federal recognition to same-sex marriages “would adversely affect the government fisc.” Even if it did, moreover, the court reasoned that the preservation of government resources cannot justify a discriminatory law under any form of heightened scrutiny.
The court went on to conclude, as an alternate basis for its holding, that Section 3 of DOMA would fail rational basis scrutiny as well. “[N]either Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. . . . [T]he Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.”
In the end, the court granted Golinski’s motion for summary judgment and permanently enjoined the judiciary, her employer, from “interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan.”
As I have argued in the past, DOMA is on its way out. Whether by repeal, by administrative undercut, or by judicial invalidation, it will disappear eventually, and most likely in the near future. The bottom line is that Golinski is a defensible ruling, while DOMA is not a defensible statute.
this shit sickens me and is one hundred percent an abomination in gods eye
You are ridiculous, go fall on something sharp.
Jibbsbikk, I don’t know what kind of hateful god you pray to or follow, perhaps you have too much hate in your life. Religious preference has no business being part of US law. Civil rights are civil rights. Religions are not accepting of others. That’s the point. You don’t think interpretations of the bible are at the root of repressing women’s rights for thousands of years? Those people who descriminte have no right making laws for our country.
The political clout between religions and gay people aren’t even in the same stratosphere. The Catholic religion has a longstanding history of influencing/imposing on governmental policy. The haters are the people who try to deny rights to others because it doesn’t fit with their viewpoint. The fact that a person is gay harms nobody, yet some people feel the need to discriminate against others because of their sexual orientation. Seems pretty clear to me who the haters are.
I don’t want your God !!! My love me !!!
Ms. Grossman writes: It also is discriminatory, in that federal law picks and chooses among
marriages based solely on the sex and sexual orientation of the parties
involved, for little reason other than animosity towards the excluded
group. In other words, those who oppose same-sex marriages are homophobic. And, of course, those who do not share Ms. Grossman’s views on issues involving other excluded groups, are racist and sexist, and the ad hominid attack goes on down the list.
“And, of course, those who do not share Ms. Grossman’s views on issues
involving other excluded groups, are racist and sexist, and the ad
hominid attack goes on down the list.”
Of course you are. If you didn’t “share my views” on whether public schools ought to be integrated, yes, that WOULD make you a racist. If you didn’t “share my views” on whether public accommodations ought to be integrated, yes, that WOULD make you a racist. If you don’t “share the view” that someone deserves equal protection of the laws, like the 14th amendment says they do, then that makes you both a bigot against that group AND a sorry excuse for an American — especially for a Supreme Court justice — EVEN if you are in the majority.
Moreover, some bigots insist on being ignorant not only of the constitution, but of Latin, biology, and rhetoric as well. The logical fallacy this writer was trying to refer to is “ad hominEM”. A hominID is something that is close to us in genus Homo, but not quite there yet — perfectly apropos of neanderthal bigotry, but not in the way the bigot actually intended.
Rhetorically, and logically, in Latin, “ad hominem” MEANS “against the man”, and it is a fallacious attack on an argument by attacking the character of the standing of the arguER (the man making the argument) AS OPPOSED to saying anything about the issue itself. Therefore, calling bigots bigots IS NOT making any sort of ad hominem argument, because we are calling them bigots AFTER HAVING REFUTED THEIR ARGUMENT. We are not saying that their argument is wrong because it’s coming from bigots; we are saying that they are bigots because they are arguing against equal protection of the laws for a class of people.
Lofstrom does not know the meaning of “ad hominem”, let alone the spelling. Opposing equal protection for a group is obviously expressing bigotry against it. Obviously. Pointing out that those who express such opposition are bigots is not any sort of ad hominem attack against them. “Ad hominem” is a rhetorical term for a logical fallacy, namely, the fallacy of trying to attack an argument indirectly by attacking the person making it. It is fallacious because the truth or logic of an argument simply have nothing to do with who is saying anything; even if one didn’t know who was making an argument, it would still be possible to analyze it, but anyone resorting to this fallacy is ignoring the content of the argument completely and focusing only on the bad characteristics of the arguer.
Condemning bigots for being bigoted simply is not doing that. There is a very clear logical argument that attempting to put someone into a lower class of citizenship, or offering him (or her) lesser protection of the law, is harmful to his or her social and legal standing as well as to his or her material interests. There is also the very relevant point that this nation’s constitution REQUIRES states to provide equal protection, so advocating anything less for anybody constitutes a level of bigotry so high that that the bigot is willing even to subvert the constitution of his own nation in order to satisfy his animus.
This is a clear logical argument, NOT anything ad hominem. Indeed, it is the bigots themselves who would much more properly be accused of that, since all logic and the plain text of the constitution clearly require equal protection, but the bigot is advocating suspending all that by attacking the character of the suspect group. In other words, the accusation is exactly backwards (as well as misspelled).
I was wondering if an insurance company that is among the choices for government employees, decided to allow legally married SS individuals to, during open season to begin paying ‘family’ or ‘self plus one’ rates would we be able to change out policies? Even if DOMA stays the same, what keeps a company from offering?
Next, I feel this is a labor issue as well. “Equal work for equal pay” is not happening. On that issue alone, we are underpaid for the same work done.
You are doing a great service in keeping civil servants informed.
32 year CS
And despite the sound of DOMA’s death rattles, we seem powerless in the face of Immigration Judges and DHS officials who reject petitions submitted by same sex partners legally wed in the United States, wherein the immigrant in question satisfies all other requirements necessary to receive the requested Visa, but for a valid marriage to US Citizen Spouse in the eyes of the Federal Government.
Thank you for the wonderful book that translates the definition of gender equality.
This is all well and obvious to me, but God, how slow the whole process is. The Gill case which is the most advanced one and appealed is desperately slow. In the meanwhile, knowing that DOMA is unconstitutional and solely based on prejudice, it harms families in real life and put them in dire situations.
I am still astounded by this:
“The Department of Justice (DOJ) not only refused to defend Section 3, as
it had promised in the Holder Memo, but it also took the anti-DOMA
position one step further: It filed a brief arguing, affirmatively, that
Section 3 is unconstitutional because it discriminates against gays and
Maybe I have overly naive ideas about what it means to advocate
zealously for a client. Holder’s client is the United States of
America. The law in question is presumed constitutional as a duly
enacted law. I do understand that the current administration gets to
decide a lot of what constitutes the interest of the US. If it decides
that it cannot in good faith defend the law, then I think it is
perfectly good and reasonable for the AG to decline to do so. But to
take that extra parting shot to undercut any effort to defend the
presumably constitutional law, appears to me as a breach of ethical
The strict scrutiny standard has not been established as the relevant
standard, as you observe. Holder argued why it SHOULD be, a result which
would virtually guarantee holding the law unconstitutional. I can’t
imagine withdrawing from defending a criminal defendant, filing a last
brief that the murder weapon with his fingerprints absolutely should be
admitted as evidence and because of that I can no longer defend him in
good faith. I recognize this is an imperfect analogy but it is hopefully
Holder’s action seems more motivated by political considerations and
policy preferences than any fact that strict scrutiny absolutely is
applicable. Again, Holder’s client is the US – not President Obama and
not himself. Am I overly naive about ethical standards? Or is it a
matter of might makes right and there is enough wiggle room about who
decides American interest that no body is ever going to scrutinize
(strictly or otherwise) Holder’s actions?
The Attorney General (or Solicitor General) refusing to argue the government’s position when he believes it to be ridiculous (and unconstitutional) is by now a time-honored (since 1992) tradition. Brought to you (originally) courtesy of THE CURRENT CHIEF JUSTICE OF THE SUPREME COURT, who, in 1992, was Acting Solicitor General (because the real one had a conflict). That’s right, JOHN ROBERTS refused to defend a federal statute that encouraged minority ownership of broadcast licenses (thus you get Fox News and the right-wing slant you have now). In other words, you are naive about the fact that if it’s cheating, THEY STARTED IT.
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