Yet another federal judge, this time a George W. Bush appointee, has struck down the Defense of Marriage Act as unconstitutional. And once again, the judge ruled that the law could not even survive the lowest level of scrutiny, the rational basis test, which usually all but guarantees that a law will be upheld. You can read the full ruling here. First, the court noted how far-reaching the effect of DOMA is:
The impact of DOMA’s definition of marriage is vast, estimated to affect atleast 1,138 federal laws and regulations and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations…
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
Then it had to decide whether to apply heightened scrutiny or the rational basis test, which requires answering the question of whether gay people have a history of discrimination that would warrant considering them a “suspect class” that is likely to be the target of unjust legislation:
The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries there have been powerful voices to condemn homosexual conduct as immoral’” and that “lesbians and gay men have suffered a long history of discriminationand condemnation.” BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group. BLAG argues that the history of discrimination against homosexuals isrelatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class…
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet…
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. In addition, the federal government hasalso labeled homosexuals mentally ill.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and(iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination.
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes…
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered along history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
But here’s where it gets interesting. Essentially, the judge said that while this history of discrimination clearly supports the suspect class certification and heightened scrutiny, it wasn’t necessary to apply such a standard because the law could not survive even the lowest level of constitutional scrutiny:
Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny. However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster undereven the most deferential level of judicial scrutiny.
BLAG, by the way, is the Bipartisan Legal Advisory Group, created by John Boehner to defend DOMA after the DOJ decided not to continue doing so. This is just another case that will likely be consolidated when the Supreme Court hears the appeals and decides the ultimate fate of DOMA. But as in past cases, it is clear that the plaintiffs and the judges are aiming their cases directly at Justice Kennedy, who used almost identical reasoning in his majority opinions in both Romer and Lawrence.
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Michael Heath
August 4, 2012 at 10:35 am (UTC -4) Link to this comment
Over the past couple of decades it’s become astonishing to see conservatives use factually true, obvious premises as we see here with this Bush-appointed judge. This behavior is now the outlier within the movement.
Zeno
August 4, 2012 at 10:46 am (UTC -4) Link to this comment
Conservative presidents have always run the risk of rational decisions from their bench appointees because judges have the independence to base their rulings on law and logic. They can’t count on all of their judges turning out to be Scalias or Borks.
PatrickG
August 4, 2012 at 10:46 am (UTC -4) Link to this comment
I got nothing but a ‘woot’.
slc1
August 4, 2012 at 10:51 am (UTC -4) Link to this comment
It will be interesting to see if George W. Bush joins his vice president, mother, and wife in endorsing same sex marriage. He’s already on record as stating that he isn’t opposed to same sex civil unions, which was the position of Obama and Hillary Clinton in 2008. It will also be interesting if his dad joins the parade.
D. C. Sessions
August 4, 2012 at 11:00 am (UTC -4) Link to this comment
You mean like the Warren Court?
Michael Heath
August 4, 2012 at 11:04 am (UTC -4) Link to this comment
Zeno writes:
Judges appointed by conservatives who adhere to the Constitution and employ sound critical thinking skills risk the advancement of their career if their rulings properly apply the law rather than advance the political objectives of the conservative movement.
ArtK
August 4, 2012 at 11:21 am (UTC -4) Link to this comment
Wait… BLAG actually argued that discrimination against gays is a recent (i.e. 20th century) phenomenon? In a legal brief? I’m glad the judge responded the way he did, but it’s sad that it takes 6 paragraphs of legal reasoning to say “you’re full of shit.”
Stevarious
August 4, 2012 at 11:51 am (UTC -4) Link to this comment
Well, sure. Obviously it’s true, since before the 20th century they were justly executed. This whole ‘allowing them to them live as human, second class’ is new because of the whole ‘allowing them live’ part. Honestly it was pretty magnanimous of them to start allowing gays to live AT ALL. But, if you give a mouse a cookie…
silomowbray
August 4, 2012 at 12:24 pm (UTC -4) Link to this comment
I wonder if the AJFs* will label Judge Bryant a “traitor” now, like they did to Chief Justice Roberts over the Affordable Care Act. It seems to be their MO: Do something we don’t like, and you’re a traitor to the Real America.
*Authoritarian Jesus Freaks.
Ed Brayton
August 4, 2012 at 1:02 pm (UTC -4) Link to this comment
Reno-
Even with Scalia, they have sometimes been disappointed. Look at his vote in Texas v Johnson, the flag burning case that sent the right into a tizzy. He’s also been a lot better on 4th amendment issues than you might expect.
Zeno
August 4, 2012 at 2:46 pm (UTC -4) Link to this comment
Certainly the Warren Court turned out to be a great shock to President Eisenhower, who plucked Earl Warren out of the California governorship to make him chief justice. However, it can be argued that Warren was driven as much by a passion for fairness as by the strict letter of the law and the rules of logic. The court had found convenient reasons to duck civil rights on many occasions, but Warren helped steer his colleagues toward a unanimous decision that “separate but equal” was just a hypocritical veil for stark racial prejudice. I wonder if Warren thought he was in part atoning for his support of the World War II relocation camps for Chinese Americans.
That was true enough in Iowa, where judges lost their seats in the election following their ruling on same-sex marriage. California judges were similarly ousted by death-penalty supporters back in the eighties. However, those with lifetime appointments are protected from ballot-box intimidation and those with long terms of office also have a degree of insulation from the politics of the moment.
D. C. Sessions
August 4, 2012 at 3:05 pm (UTC -4) Link to this comment
Life tenure won’t get you from District to Appellate or Appellate to USSC or Associate to Chief.
slc1
August 4, 2012 at 3:08 pm (UTC -4) Link to this comment
Re Zeno @ #11
I think that Mr. Zeno meant Japanese Americans, not Chinese Americans.
Infophile
August 4, 2012 at 7:07 pm (UTC -4) Link to this comment
@12 D. C. Sessions:
I would suspect that many Appellate judges are comfortable with how far they’ve already risen. Only a small percentage of them ever go onto to the Supreme Court, and so it doesn’t make much sense for all of them to “campaign” for it.
Zeno
August 5, 2012 at 12:51 am (UTC -4) Link to this comment
slc1 is most assuredly correct about my error!
danielmurphy
August 5, 2012 at 4:01 am (UTC -4) Link to this comment
I liked the quote in Judge Bryant’s decision from the Supreme Courts’s opinion in Harper v. Virginia State Bd. Of Elections (1966), which ruled Virginia’s poll tax unconstitutional and overturned a 1937 SCOTUS decision. William O. Douglas wrote for the 6-3 majority:
In Harper, Douglas continued:
Keeping that in mind, I’m looking forward to reading Justice Scalia’s clock-rewinding dissent, when DOMA reaches the Supreme Court.
dingojack
August 5, 2012 at 4:34 am (UTC -4) Link to this comment
danielmurphy – I agree rather in the same way as Commander Riker would*. [/STNG nerd] :)
I have cut and pasted the quote onto a word document in case I ever need to refer to it in future.
Dingo
—–
*RIKER: Indeed, yes, I wholeheartedly concur!
PICCARD: A simple ‘yes’ would have sufficed Number One.
Quodlibet
August 5, 2012 at 6:50 am (UTC -4) Link to this comment
I am happy to add that this court is in my state of Connecticut, where marriage equality was made possible by the legislature in 2008, with no action toward repeal. The sky hasn’t fallen here yet, and all the straight couples have not crowded the divorce courts because their gay neighbors have chosen to wed.
The bigots’ argument against marriage equality — that it destroys marriage and the family — is blasted to bits by the irony that MORE marriages take place and MORE families are formed when everyone has the opportunity to marry and make families. Another happy side effect I see is that several gay couples I know have adopted children, something that is far easier now than it was in the past. This is a benefit to society, families, and those children who long for families. Seems all good to me!
pipenta
August 5, 2012 at 7:35 am (UTC -4) Link to this comment
That and we have awesome pizza. Go CT!
boselecta
August 5, 2012 at 9:43 am (UTC -4) Link to this comment
“BLAG, by the way, is the Bipartisan Legal Advisory Group”
Wait, what? They actually called themselves Blag, as in ‘to acquire by sheer chutzpah, something which you have not earned, and to which you are no more entitled than everyone else who doesn’t get it’?
vmanis1
August 5, 2012 at 11:07 am (UTC -4) Link to this comment
From Wiktionary,
One should also not forget that in French, `blague’ means `joke’.
uncephalized
August 6, 2012 at 10:56 am (UTC -4) Link to this comment
Re: “blag”
There is no such slang word in American vernacular AFAIK; most people naming things aren’t in the habit of taking into account the quirks of other languages/dialects beside their own.
dingojack
August 6, 2012 at 11:03 am (UTC -4) Link to this comment
I thought a ‘blagger’ was someone who committed ‘blags’ (armed robberies) – or is that just a product of watching far too many re-runs of The Sweeney (and the like) whilst drinking endless expressoes. :)
Dingo
vmanis1
August 6, 2012 at 11:47 am (UTC -4) Link to this comment
I made no claim that anyone on the BLAG (collective intelligence less than a barnacle’s) was naming themselves after a piece of British slang. I just think it’s an amusing coincidence that the meaning is so apposite.
DOMA Fails Another Challenge, Countdown to the Cries of “Help, Help, We’re Being Oppressed” By Christian Bigots Starts……Now! « Foster Disbelief
August 6, 2012 at 4:39 pm (UTC -4) Link to this comment
[...] Ed Brayton over at Dispatches has the full story, so I’m not going to spend much time on this here, but I did want to point it out. First, a bit from Ed: Yet another federal judge, this time a George W. Bush appointee, has struck down the Defense of Marriage Act as unconstitutional. And once again, the judge ruled that the law could not even survive the lowest level of scrutiny, the rational basis test, which usually all but guarantees that a law will be upheld. You can read the full ruling here. [...]