Supreme Court

Another Federal Judge Strikes Down the Defense of Marriage Act

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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.

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  1. The problem is, they can’t really strike down DOMA on equal protection grounds without forcing every state to recognize gay marriage, can they? That would be Roe v Wade redux which the Supremes probably don’t want.

    This is aside from the fact that I think the EPC argument is bogus to begin with.

    1. I hope they strike down DOMA and force every state to recognize gay marriage.

      Libertarianism is not beholden to state’s rights or democratic majoritarianism.

    2. Whether the federal government must recognize a valid state marriage is a different question than whether a state must allow same-sex marriage, and the legal analysis is distinct, because the role the federal government is serving is different from the role the state government is serving. The Court could, within established doctrines, strike down this portion of DOMA, uphold the FFC section of DOMA, and uphold Prop 8, all while being internally consistent. Not saying they will, just that they could.

  2. And actually, the equal protection clause only applies to the states, not the federal government. WTF?

    1. Yes, the courts are using the “equal protection component” of the Due Process Clause of the Fifth Amendment.

      It’s in the penumbras.

  3. This will fill you with rage, Penn Jillette style: A User’s Guide to Smoking Pot With Barack Obama

    1. The comments are doing a fucking epic job of missing the point.

      1. I would rather vote for someone who had the typical 70’s high school experience than one who would bully and shave the head of a gay student and ‘not remember it’.

        As opposed to the guy using the might of the most powerful government in the history of the world to bully legal purveyors of medical marijuana.

      2. Facebook has unleashed a truly epic level of retard upon the world.

    2. Why am I not surprised at number 6 on that list?

  4. Wouldn’t the various advocates get together and choose the most valuable and winnable case to shepherd to the Supreme Court?

    1. Because then all the various lawyers wouldn’t get hired and get their names in the paper.

  5. “The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation,” White wrote.

    [cough] drug laws [cough]

    1. Yeah, that’s kind of strange. It would be nice to have the courts rule that any legislation of morality is unconstitutional, though.

    2. Aren’t all moral beliefs (e.g., “discrimination based on sexual orientation is wrong”) subjective? Is this guy completely lacking in self-awareness, retarded, or just a closet anarchist?

  6. The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation

    But that’s unpossible!

    Isn’t that the whole rationale behind GOP John’s justification for everything!

  7. “The obligation of the Court is ‘to define the liberty of all, not to mandate our own moral code.'”

    Not very self-aware on the part of a judge imposing a personal moral code on the entire country.

    “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…”

    No, it posits that there is something inherently special about an institution peculiarly suited to guarantee that children will be raised by their mother and father. Something that should even be encouraged.

    It’s the judges who are irrational. More so than usual.

    1. Since two adults of opposite sexes can marry regardless of the ability or desire to produce children, this rationalization is post hoc and unconvincing.

      1. Are you seriously claiming that people invented opposite-sex marriage and then, *after the fact,* made up an explanation about having children raised by their mothers and fathers?

        Can you see how ridiculous that suggestion is?

        1. It seems more likely to me that marriage was more about making business/political relationships have something binding than it ever was about children.

          Do you really mean to suggest that until marriage, societies couldn’t figure out that children being raised by their parents was a good idea? People needed an institution in order to insure the proper rearing of their offspring? In many marrying societies, children, particularly sons, weren’t raised by their fathers anyways, because it was only the mother who could be known definitively to be their blood relative, so oftentimes it was the mother’s closest male relative (a brother in most cases) who did the child rearing.

          1. “more about making business/political relationships have something binding than it ever was about children.”

            Not exactly an either/or. People promoted the interests of their families by arranging jobs, good marriages, etc. for their children.

            Generally, there was a lot of focus on making sure the husband was actually the father. There are perhaps exceptions in some matriarchal societies, but in those societies which shaped America, it was generally the former situation.

            1. The insistence on the wife not fooling around was so strong that it encouraged the “double standard” against which the Church fought so hard – they thought the husband should be faithful, too.

        2. People invented marriage as a formal exchange of property (i.e., a human woman) from father to husband.

          Since we are in the year 2012, marriage is now a selection of rights and privileges granted to any interested heterosexual couple, regardless of ability or desire to produce children, or a dowry for that matter. There is no justification for denying it to homosexual couples, who, I’m sure you understand, are just as capable of raising children as anyone.

          Indeed, if the justification for marriage is to provide a stable household for the raising of children, the only logical conclusion is to extend its protections to same-sex couples, many of whom are raising children.

          1. “People invented marriage as a formal exchange of property (i.e., a human woman) from father to husband.”

            And only afterwards did they realize that, hey, we’re having children raised by a mother and father, what a coincidence!

            “Indeed, if the justification for marriage is to provide a stable household for the raising of children, the only logical conclusion is to extend its protections to same-sex couples, many of whom are raising children.”

            Really? The only logical thing to do is to provide that, if Dad breaks up with his male lover, the ex-lover gets visitation with the child? I don’t see the inexorable logic of your position.

            1. Are adoptive parents equally as worthless as gay parents? Or are you just making up excuses to deny a freedom that can’t possibly harm anyone for people to practice it? Libertarian.

          2. My dad says that marriage is just a really expensive way to get your laundry done.

  8. Legitimate question:

    Many states have, in recent years, added a clause to their respective state constitutions recognizing only marriages between a man and a woman.

    How might a SCOTUS ruling on 14th Amendment grounds affect those new amendments and clauses? Can they delegitimize portions of a state constitution o 14th Amendment grounds?

    Personally I’m against the state having any part in “recognizing” or “affirming” any relationships of any kind. But since this is the climate we live in, a federalist approach seems most prudent. Get rid of any federal laws concerning marriage and let states make choices for themselves.

    1. If courts are striking down the federal law based on Equal Protection, then the next step isn’t federalism, it’s striking down the state laws, too.

    2. If states passed a constitutional amendment re-legalizing slavery, it would also rightly get struck down. Not trying to compare the two, merely pointing out that the 10th Amendment is not an unlimited blank check for the states to do whatever they want.

      Loving v. Virginia (where they ruled against the ban on interracial marriage) already established a constitutional precedent against states using biological features to enforce legal marital discrimination. Brown v. Board established that states establishing separate legal structures based upon biological differences violates equal protections, which should be used to strike down the notion that “civil unions for one, marriages for another” is an acceptable compromise. These judges striking down DoMA are completely in the right.

      1. Interracial marriage was banned because of eugenics. They wanted to prevent interracial children.

        Since same sex couples can’t reproduce, I fail to see how same sex marriage and interracial marriage can be compared.

        1. ??

          Regardless of reasons for being banned in the first place, it was shot down due to the equal protections clause. Swap race for gender, and we have an equally meaningless biological basis for legal discrimination. And ability to reproduce has nothing do to with marriage rights, unless you support banning barren women, sterile men and couples that don’t want kids from marrying.

          1. unless you support banning barren women, sterile men and couples that don’t want kids from marrying.

            Some opposite sex couple cannot or choose not to reproduce.
            All same sex couples cannot reproduce.
            Some does not equal all.
            Again the comparison fails.

            1. Ability or desire for a couple to reproduce has absolutely nothing whatsoever to do with equal legal protections.

              And lesbians can be impregnated by the same means a woman with a sterile husband can. And gay men can impregnate a surrogate, as a couple with a barren wife might.

              Also, 70 year old women can’t physically get pregnant. Should we ban late-life marriages?

              1. Ability or desire for a couple to reproduce has absolutely nothing whatsoever to do with equal legal protections.

                Redefining marriage has nothing to do with legal protections.

                I started off supporting same sex marriage. Really. I did.

                I jumped off the boat when I discovered that these people would not be satisfied with any compromise that gave them equivalent legal protections without the word “marriage”.

                At that point I realized that it was a lie. It was not about legal protections. It was about a word.

                Since I despise liars, I had to withdraw my support.

                1. That’s like saying “I supported gun rights, until I realized many gun rights supporters are racist nuts. That’s when I realized their definition of gun rights meant ‘the right to kill black people’. Therefore, I withdrew my support.”

                  Gay civil unions and straight marriage is just “separate but equal, part II”. It’s undeniably better than nothing, but it is not equal protections as guaranteed by the 14th Amendment (which bans legal discrimination based upon gender) and reinforced by Brown v. Board.

                  And we keep going through this. How many times have they redefined legal marriage since it began? It used to be legal to marry a minor. It used to be illegal to marry someone of a different race. Polygamy used to be legal in some locales.

                  1. And we keep going through this. How many times have they redefined legal marriage since it began? It used to be legal to marry a minor. It used to be illegal to marry someone of a different race. Polygamy used to be legal in some locales.

                    In all cases, for thousands of years, there was something in common.

                    Can you guess what it is?

                    1. And we’ve had that argument before as well. There’s ample evidence from Ancient Roman and Chinese history that legal gay marriage contracts were recognized by some governments. Several Roman emperors are considered to have been married to other men.

                      Even based on the flimsy argument that marriage must be forever locked to the heterosexual model despite not being locked to the intraracial, legal adulthood and polygamous models asserted by history, genetic research has well established the biological basis for homosexuality over the past half-century or so. Because of this, I’m not seeing why the government has the right to say which genders legal marriage is applicable to but not which races.

                      Also, we are very clearly talking about legal marriage, which is distinct from religious marriage. Legal marriage should be defined on the basis of equal protections. We could probably both agree that the ideal solution is civil rights for all, however. But until that’s the option on a ballot, endorsing anything less maintains unequal protections.

                    2. make that “We could probably both agree that the ideal solution is civil rights unions for all”.

                2. By the way, nice dodge, instead of admitting that making reproductive ability the basis for determining marital rights is a non sequitur.

  9. But that’s the question I have. These additions to state constitutions aren’t “law” per se.

    1. Because they’re unconstitutional?

  10. Given that marriage predates recorded history, I don’t think it’s ridiculous at all to suggest that the rationalizations hatched by social “scientists” followed the establishment of the tradition itself.

  11. Glad to hear it. Judicial activism in pursuit of liberty and equal legal protections under the 14th amendment outdated 10th Amendment arguments for why states should be able to violate individual rights.

    1. Should have been “Judicial activism in pursuit of liberty and equal legal protections under the 14th amendment is better than outdated 10th Amendment arguments for why states should be able to violate individual rights.” Stupid squirrels eating my greater than symbol.

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