February 22, 2012
By Jacob Combs
Today marked another major milestone in the path to getting rid of the Defense of Marriage Act, as Judge Jeffrey White of the Northern District of California struck down DOMA in the case Golinski v. OPM.
Judge White, a Bush appointee, determined that DOMA should be considered under the more critical heightened scrutiny measure (as the Justice Department recommended last year), but also noted that several courts have found that the provision would not even pass the more deferential rational basis test. In his decision, Judge White wrote:
The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.
Today’s decision is significant because it joins Judge Joseph Tauro’s joint decisions in the 2010 cases Massachusetts v. HHS and Gill v. OPM striking down DOMA in Massachusetts district court. That case is now on appeal in the First Circuit, and it is likely that today’s decision will be appealed in the Ninth Circuit.
These DOMA challenges can only mean good news for the Prop 8 case, especially now that that case may be delayed if considered for rehearing in the Ninth Circuit. If Judge Tauro’s decision is upheld on appeal, (especially considering the fact that Judge White’s decision could also be making its way through the appeals process), it seems likely that the Supreme Court would take the case. In striking down DOMA, the Supreme Court would not have to make any deliberation on an inherent constitutional right to marriage equality, and could rely on a states’ rights argument that might appeal to the court’s more conservative wing. A Supreme Court opinion striking down DOMA would almost certainly be referenced in a defense of Judge Walker’s Prop 8 decision, not to mention the fact that it would make a win in the Prop 8 case even more consequential, since gay and lesbian couples in California would be able to enjoy full federal marriage rights.
In an email to P8TT, Jon Davidson, Legal Director of Lambda Legal, had this to say about today’s decision:
I would say that between the Ninth Circuit’s ruling that Prop 8 is unconstitutional, the ruling we obtained yesterday reinstating our New Jersey marriage case, the passage of marriage equality in Washington, the passage of a marriage equality bill through the legislature in New Jersey, and the passage of a marriage equality bill through the Maryland House, this latest victory over DOMA shows that we have passed the tipping point. February 2012 will go down in history as the month marriage equality became unstoppable.