Jeffrey White

A federal district court judge in San Francisco ruled Tuesday (February 22) that the Defense of Marriage Act (DOMA) violates the rights of gays and lesbians to equal protection of the law.

The ruling by Judge Jeffrey White of the U.S. District Court for Northern California was the second time a federal judge has declared unconstitutional the federal law banning recognition of same-sex marriages. A federal district court judge in Boston made a similar ruling in July 2010, in consolidated cases brought by Gay and Lesbian Advocates and Defenders (GLAD) and the Commonwealth of Massachusetts.

This week’s ruling came in a case, Golinski v. Office of Personnel Management (OPM), brought by Lambda Legal Defense on behalf of a lesbian attorney, Karen Golinski, who is employed by the Ninth Circuit U.S. Court of Appeals.

Golinski married her female partner of 20-plus years in August 2008, when it was possible to do so in California. She then applied for health care coverage for her spouse through her employer, the Ninth Circuit, which prohibits discrimination based on sexual orientation. Ninth Circuit Chief Judge Alex Kozinski ordered the court to provide Golinski benefits but the OPM, headed by openly gay appointee John Berry, instructed the insurance company not to enroll Golinski’s spouse, noting that DOMA precluded the federal employer from recognizing Golinski’s marriage.

Golinski’s lawsuit, like that of the Massachusetts cases, challenges only Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples.

Judge Jeffrey White, an appointee of President George W. Bush, said the legislative history of DOMA is “replete with expressed animus toward gay men and lesbians” but he said he was “persuaded that something short of animus may have motivated DOMA’s passage.” That “something short of animus,” he suggested, might have been a simple lack of “careful, rational reflection” or “instinctive” reaction to “people who appear to be different….”

Tara Borelli, the Lambda staff attorney who led Golinski’s challenge, said White’s decision “spells doom for DOMA.” But the decision will almost certainly be appealed given that House Speaker John Boehner has committed to funding a legal defense of the law. Boehner did so soon after the Obama administration announced, in February 2011, that it considers DOMA to be unconstitutional and would not mount a vigorous defense of it in court.

Seeming to anticipate criticisms that his opinion rendered him an “activist judge,” White noted, “The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law.”

In his ruling, White said the appropriate level of review in scrutinizing DOMA was “heightened review,” a level of scrutiny more vigorous than mere “rational review.” If a law is subjected to heightened review, a court must find that the law treating one group of people differently is “substantially related to an important governmental objective.” White said Congress failed to justify its disparate treatment of gays and lesbians under either rational or heightened scrutiny.

In the two Massachusetts cases, Judge Joseph Tauro, an appointee of President Nixon to the U.S. District Court in Boston applied only rational review when he ruled that Section 3 of DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment and violates the Tenth Amendment by taking from the states decisions concerning which couples can be considered married. The U.S. House Bipartisan Legal Advisory Group (BLAG) is leading the appeal of Tauro’s ruling in the consolidated cases, known generally as Gill v. OPM. A three-judge panel of the First Circuit U.S. Court of Appeals is expected to hear oral arguments in the first week of April.

The Defense of Marriage Act was passed by Congress and signed into law by President Clinton in 1996. While Section 3 is the only part under challenge at this time, the law also includes a Section 2 which stipulates that states may refuse to recognize same-sex marriages duly licensed by other states.