Bush-Appointed Federal Judge Tosses Out Defense of Marriage Act

Bush-Appointed Federal Judge Tosses Out Defense of Marriage Act

During the five months when gay marriage was legal in California in 2008, Karen Golinski, a staff attorney for the Ninth Circuit Court of Appeals--the most liberal court in America--married her long-time girlfriend, Amy Cunninghis, and attempted to enroll Cunninghis in her federal medical insurance package.

She was denied by the Office of Personnel Administration, who cited the federal Defense of Marriage Act (DOMA), the 1996 law enacted by then-President Bill Clinton that defined marriage for federal purposes as occurring between one man and one woman.

Golinski filed suit, and in a stunning display of irony, a federal judge appointed by über-neocon former President George W. Bush has declared the federal Defense of Marriage Act unconstitutional.

It's become almost de rigueur for judicial opinions regarding gay marriage to quote extensively from Romer v. Evans, the 1996 Supreme Court case that overturned Colorado's constitutional amendment banning gays and lesbians from being recognized as a protected class under the law. That opinion was written by Justice Anthony Kennedy, who is widely viewed as the swing vote on gay rights issues on a Supreme Court that would otherwise be split 4-4 on the issue.

In 2010, President Obama announced that his administration would no longer defend DOMA; in response, the district court allowed Congress to set up the Bipartisan Legal Action Group (BLAG), which intervened in the case.

In the opinion, White writes drily of the grade-school sandbox behavior of the OPM, who issued a press release thumbing their noses at Chief Judge Alex Kozinski of the Judicial Council that arbitrated Golinski's case and found in her favor, and pooh-poohing the authority of the Judicial Council's to arbitrate the matter in the first place. He also blasted BLAG for reading a salon.com blog post into evidence as "proof" that gay couples cannot raise children.

As part of his 43-page decision, White asserted that anti-gay legislation must survive heightened scrutiny--meaning that it must further a specific government interest, and that interest must be called out in the text of the law--in order to be valid. He delineated the reasons why DOMA does not meet heightened scrutiny, and then, covering all bases, he delineated the reasons why DOMA does not meet the more lax "rational basis" tests.

White is the second federal judge to throw DOMA out on Constitutional grounds; the first case, Gill et al. v. Office of Personnel Management, was decided in Massachusetts in 2010 and is being heard by a federal appellate court. White's ruling is almost certain to be appealed, though its next step is the aforementioned Ninth Circuit Court of Appeals in San Francisco.

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