A federal judge in San Francisco late Wednesday became the latest jurist to rule that the anti-gay Defense of Marriage Act is unconstitutional.
It is the first such ruling since the Obama administration and U.S. Attorney General Eric Holder announced last year that the Department of Justice would no longer defend the federal DOMA statute in court.
In his decision released Wednesday, February 22 U.S. District Court Judge Jeffrey S. White declared that DOMA violates the U.S. Constitution's guarantee of equality. The opinion came in a long-running lawsuit over benefits for federal government employees.
"Denying federal benefits to same-sex married couples has no rational effect on the procreation and child-rearing practices of opposite-sex married (or unmarried) couples," he wrote.
Lambda Legal Defense and Education Fund and Morrison and Foerster LLP brought the case on behalf of Karen Golinski, a 20-year employee of the U.S. 9th Circuit Court of Appeals, who has been fighting to add her wife, Amy Cunninghis, to her employer-provided health insurance.
"This ruling, the first to come after the Justice Department announced it would no longer defend this discriminatory statute in court, spells doom for DOMA," stated Tara Borelli, staff attorney in Lambda Legal's western regional office in Los Angeles.
A similar ruling holding DOMA unconstitutional in a separate case is on appeal in the 1st Circuit. That lawsuit originated with legal advocates in Massachusetts.
White, a Republican appointee to the bench, ruled that DOMA is a violation of the Fifth Amendment's constitutional guarantee of equality because it denies one class of individuals the rights and benefits available to all others because of their sexual orientation.
It does so, ruled White, " without substantial justification or rational basis" for why Golinski's spouse should not be provided benefits. He ordered the government to enroll her wife in her family health benefits plan.
"The court agreed with us that sexual orientation discrimination by the government should receive heightened scrutiny under the constitution," stated Borelli. "It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive."
In a statement sent to reporters Golinski said she was "profoundly grateful for the thought and consideration that Judge White" gave to her case.
"His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues," she said according to the release. "This decision is a huge step toward equality."
The case, Golinski v. U.S. Office of Personnel Management , arose after Golinski married Cunninghis, her partner of 22 years, when same-sex marriage was legal in California in 2008. After the ceremony Golinski requested that her health plan include her wife.
Her application was denied because the federal government argued that, due to DOMA, she was not in a valid marriage and her spouse, therefore, did not qualify to be covered by her health insurance.
In January 2009, 9th Circuit Chief Judge Alex Kozinski ruled that denying Golinski spousal health insurance for Cunninghis was illegal discrimination. He ordered the Administrative Office of the U.S. Courts to submit Golinski's health benefits election form to her insurer, Blue Cross/Blue Shield.
But OPM disagreed with Kozinski's order and told Blue Cross not to comply. In November 2009, Kozinski issued a further ruling explaining that he has the authority, under both the 9th Circuit's employment dispute resolution plan and the constitutional separation of powers doctrine, to interpret laws governing the rights of judicial employees.
Once again OPM refused to adhere to the judge's order, this time claiming that it was not binding and that the U.S. Department of Justice had advised it not to comply because of DOMA. When OPM failed to appeal by the December 2009 deadline, Kozinski held that his prior rulings had become conclusive and binding against OPM.
Golinski then launched an enforcement case in federal district court to seek an injunction against OPM and its director, John Berry, to force them to comply with Kozinski's rulings. At first the Obama administration sought to have the case dismissed.
But last year it switched course and announced it would no longer defend DOMA's Section 3 in court. Last summer it filed a brief with the 9th Circuit seeking to have DOMA be struck down.
And in December Tony West, the assistant attorney general of the justice department's civil division, flew out to San Francisco and told White he should strike down DOMA.
It will be up to the House of Representative's Bipartisan Legal Advisory Group to repeal the decision to the 9th Circuit Court of Appeals. The Republican-controlled House opted to defend DOMA in the case following the administration's refusal to do so and hired the law firm of Bancroft PLLC, to represent it.