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Religious Tolerance logo

Federal "Defense of Marriage Act" (DOMA)

Part 1: 2012-FEB-22: N. California federal district
court finds federal DOMA law unconstitutional.

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In this website, "SSM" means "same-sex marriage;"
"LGBT" refers to the lesbian, gay, bisexual and transgender community;
and "LGB" refers to lesbians, gays, and bisexuals.
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2010-JAN: Events leading up to the lawsuit Golinski v. Office of Personnel Management (OPM):

Karen Golinski is a lesbian and an attorney who happens to be an employee of the 9th U.S. Circuit Court of Appeals in California. She and her wife, Amy Cunninghis, have been together since the late 1980's. They registered as domestic partners first during 1995 in San Francisco, and later with the State of California in 2003. They adopted a child together. They were married in California during 2008-AUG. This was during a six-month interval:

  • After 2008-MAY when the Supreme Court of California legalized same-sex marriages (SSMs) and

  • Before election day in 2008-NOV when Proposition 8 terminated, at least temporarily, future SSMs.

Prop. 8 -- often referred to as "Prop. H8" (Prop Hate) -- did not contain a retroactive clause. Thus, she, her partner, and some 36,000 other California same-sex married spouses were not forcibly divorced by the state; their marriages remained intact.

After her marriage, she applied for health care coverage for her spouse and was refused. Later in 2008, she filed a complaint under her employer's Employment Dispute Resolution Plan (EDR), which prohibits employment discrimination based on sex, sexual orientation, and other grounds. She won her dispute in 2009. Ninth Circuit Chief Judge Alex Kozinski determined that the OPM had the discretion to extend health benefits to Ms. Golinski's spouse in spite of the language of DOMA. He ordered that the benefits be granted.

However, the OPM instructed their insurance company to not enroll the plaintiff's spouse because the OPM's interpretation of the federal DOMA law is that it prohibits the court -- or any other federal employer -- from recognizing same-sex marriages, and prohibits the federal government from giving any marriage-related benefits to same-sex married couples.

The OPM appears to have been on a solid legal footing, because Section 3 of DOMA states in part:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Creation of the DOMA law in 1996 had been triggered by a decision by the Hawaii Supreme Court in 1993 which concluded that same-sex couples might be entitled to marry under that state's constitution. Some members of Congress panicked. Many viewed the Hawaiian decision as an attack on the institution of marriage that was certain to expand to mainland states.

There had been two previous major re-definitions of marriage in the U.S.:

  • The first was during the 19th century at the end of the Civil War when opposite-sex African American couples were allowed to marry anywhere in the U.S.

  • The second was in 1967 when the U.S. Supreme Court ruled that interracial couples could marry anywhere in the U.S.

However, these re-definitions had always defined marriage as between men and women, not two persons of the same sex. Going back thousands of years, marriage had almost always involved one man and one or more women, rarely one woman and multiple men, and was only very rarely seen in the form of two men or two women. Thus the concept of same-sex marriage is difficult for many people to accept and equate with traditional opposite-sex marriage.

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2011-DEC-16: Lawsuit heard in federal District Court:

The conflict eventually landed in federal court: the U.S. District Court for Northern California. Judge Jeffrey S. White heard the case on 2011-DEC-16.

Normally, the Department of Justice (DoJ) would have defended DOMA in this case. However, during 2011-JAN, the Obama administration had decided that DOMA had been found unconstitutional by so many federal courts that they could no longer ethically defend its constitutionality. The Bipartisan Legal Advisory Group (BLAG) in the House of Representatives intervened to defend DOMA instead. The name of the group is a bit of a joke. Although it was theoretically bipartisan since it was composed of three Republicans and two Democrats, all five members have voted strictly along party lines in every BLAG decision.

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2012-FEB-22: U.S. District Court found Section 3 of the federal DOMA law unconstitutional:

Judge White had been appointed by George W. Bush (R) in 2002. Like so many other District Court judges before him, Judge White ruled that Section 3 of the federal DOMA law is unconstitutional. He found that it violates the Fifth Amendment to the U.S. Constitution because it deprived lesbians, gays, and bisexuals in same-sex marriages of equal rights routinely given to all heterosexuals in opposite-sex marriages. 1

Judge White wrote:

"In this matter, the court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse." 2

He criticized Congress for its inaction, by writing:

"... this Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. 3

Perhaps to avoid criticism of his ruling as "judicial activism" he wrote:

"The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law." 3

He also commented that:

"... tradition alone" doesn't justify legislation that targets a vulnerable social group. "The obligation of the court is to define the liberty of all, not to mandate our own moral code. The 'ancient lineage' of a classification does not render it legitimate."

A major component of Judge White's ruling is his finding that DOMA should be subjected to "heightened review" (a.k.a. "heightened scrutiny)." That would require a law that treats one group of citizens differently from others must be "substantially related to an important government objective." According to the National Legal Foundation:

"Under a strict scrutiny standard, a statute is examined using two tests: First, does the law promote a compelling state interest? Second, does it do so in the least restrictive means possible." 4

Judge White wrote:

"The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review. ..."

"Rational basis review" is a much less stringent requirement than "heightened strutiny."

"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. ..."

"The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. ..."

"In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan." 5

Judge White's 43 page ruling is available online. 6

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Lisa Keen, "Federal judge: DOMA unconstitutional," Keen News Service, 2012-FEB-22, at:
  2. "Federal Judge in California Strikes Down Key Provision of DOMA," ABC News, 2012-FEB-22, at:
  3. Dan Avery, "Bush-Appointed Judge Rules DOMA Is Unconstitutional in CA Case," QWEERTY, 2012-FEB-22, at:
  4. "Roy Romer, Governor of Colorado v. Richard G. Evans..." National Legal Foundation, at:
  5. Chris Geidner, "DOMA's Federal Definition of Marriage Unconstitutional, Judge Rules in Golinski Case," Poliglot, 2012-FEB-22, at:
  6. Text of "Golinksi v. OPM: No. C 10-00257 JSW," Think Progress, 2012-FEB-22, at:
  7. Lisa Leff, "Lesbian federal worker wins health benefits case," Associated Press, 2012-FEB-23, at:
  8. "House leaders to appeal Calif. gay marriage ruling," Associated Press, 2012-FEB-24, at:

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Copyright © 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2012-FEB-25
Latest update: 2012-NOV-28
Author: B.A. Robinson

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