Back in February, Judge Jeffrey White of the U.S. District Court for the Northern District of California ruled that the Defense of Marriage Act violates the U.S. Constitution's guarantee of equal protection, which appears in the 14th Amendment's Equal Protection Clause but has also been read to apply to the federal government via the Fifth Amendment's Due Process Clause. "The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation,” White wrote. “The obligation of the Court is 'to define the liberty of all, not to mandate our own moral code.'" That decision has since been appealed to the United States Court of Appeals for the 9th Circuit, which will hear the case this fall.
In the meantime, another federal judge in California has added to the anti-DOMA chorus. In a ruling handed down yesterday, U.S. District Judge Claudia Wilken also found the Defense of Marriage Act to be unconstitutional under the Equal Protection Clause. Here’s a portion of her ruling:
The notion that civil marriage may only sanction a union between a man and a woman posits that there is something inherently objectionable about homosexuality or that same-sex intimate relationships are irreconcilable with the core characteristics of marriage. Singling out same-sex spouses for exclusion from the federal definition of marriage amounts to a bare expression of animus on the basis of sexual orientation and, under Romer, this rationale does not satisfy rational basis review.
Romer refers to Romer v. Evans, the 1996 case where the Supreme Court struck down a Colorado constitutional amendment that had forbidden state officials from taking any action designed to protect gays and lesbians from discrimination. “The amendment imposes a special disability upon those persons alone,” Justice Anthony Kennedy wrote in his majority opinion. “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”
At this point, we’re essentially looking at a race to the Supreme Court between these various DOMA challenges (including the DOMA case from Massachusetts) and the legal challenge filed against California’s Proposition 8, which had amended the state constitution to forbid gay marriage. That case, which is being spearheaded by the all-star tag-team of Republican lawyer Ted Olson and Democratic lawyer David Boies (last seen together when they faced off in Bush v. Gore), has already won before a 3-judge panel of the 9th Circuit, and is now awaiting review by a full 9th Circuit panel. So whether it’s the case against DOMA or the case against Prop. 8, one or more of these lawsuits is very likely to hit the Supreme Court, which could rule on the constitutionality of gay marriage as early as next year.
Update: This post has been edited for clarity.