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Religious Tolerance logo

Federal "Defense of Marriage Act" (DOMA)

Part 2: 2012-FEB-22: Reactions to District Court ruling.
Appealed to 9th Circuit Court of Appeals; then vacated.

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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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This essay is a continuation from the previous essay

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2012-FEB: Reactions to Judge White's decision in Golinski v. Office of Personnel Management (OPM):

John Davidson, legal director at Lambda Legal Defense Fund, which represented the plaintiff said:

"We are thrilled. This is a grand slam for us. Judge White agreed that sexual orientation discrimination should be given heightened judicial scrutiny and there is not even a rational justification for DOMA’s discrimination. Courts should regard with suspicion government discrimination based on sexual orientation." 1

Tara Borelli, staff attorney for Lambda Legal said that the ruling:

"... spells doom for DOMA. ... The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment. The Court agreed with us that sexual-orientation discrimination by the government should receive heightened scrutiny under the Constitution. 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." 2

Plaintiff Karen Golinski said:

"I am profoundly grateful for the thought and consideration that Judge White gave to my case. His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues. This decision is a huge step toward equality." 4

"Cam" posted a comment to the QWEERTY article from which some of the above comments were extracted. He said:

"Sorry ... , but when even Bush appointees are attacking DOMA your days are numbered." 2

Tara Borelli of Lambda Legal, the lead attorney in the case said.

"The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment." 3

House Minority Leader Nancy Pelosi (D-CA) said:

"In rejecting the arguments of the Bipartisan Legal Advisory Group, the court's ruling also reaffirmed a core belief of the majority of House Democrats: that the House is not united in this case; that the BLAG lawyers do not speak for Congress; and that BLAG's intervention remains a waste of taxpayer resources. ... The court made it clear that there is no legitimate federal interest in denying married gay and lesbian couples the legal security, rights, and responsibilities guaranteed to all married couples under state law." 3

A case can be made that BLAG's intervention is a valuable use of taxpayer money because it adds one more federal District Court to the list of courts that have found DOMA unconstitutional. This results in pressure on the U.S. Supreme Court to resolve the issue. The only other path towards resolution would be to have Congress repeal or amend DOMA. That is essentially impossible because Congress is deadlocked. The House is under the control of one major party while the Senate is controlled by the other.

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Reaction by religious conservatives:

Just before we searched the Internet to find what we expected to be negative comments by religious and social conservatives on this case, a program on Family Talk -- a channel on Sirius/XM satellite radio -- covered the story. The newscaster reported the ultimate argument to attack Judge White's credibility: guilt by proximity. He pointed out that that Judge White had an office in the same building as Judge Walker once had before the latter retired. Walker is the judge who found Proposition 8 unconstitutional.

We did a Google search using the string: white district court doma unconstitutional and looked for a report by a conservative group. After five pages of Google results (60 entries) we gave up. All were posted by liberal or middle-of-the-road news sources. Surprisingly, searches of the websites of the Family Research Council and Focus on the Family turned up no leads.

One News Now did cover the story. Surprisingly, they re-posted a well balanced Associated Press article. Their site said, in part:

"Wednesday's ruling is the latest in an unbroken string of judicial setbacks for the Defense of Marriage Act, which Congress approved when states first started considering allowing gay and lesbian couples to get married. The law defines marriage as a union between a man and woman, and prohibits the government from granting benefits such as Social Security and Medicaid to same-sex [married] couples."

"A federal judge in Massachusetts, where same-sex marriage has been legal since 2004, ruled in July 2010 that the law is unconstitutional because it interferes with the right of a state to define the institution. A year later, 20 of the 24 [federal] bankruptcy judges [of the U.S. Bankruptcy Court for the Central District of California] ... ruled that the act violated the civil rights of a married gay couple who were denied the right to file a shared bankruptcy plan."

"Last week, the Obama administration said it was extending its decision to stop defending the law to issues affecting actively serving military personnel and veterans in same-sex relationships."

"In ordering the government to allow Golinski to enroll her wife in a family health plan, White rejected all of the arguments the House group advanced in defense of DOMA, such as that it was necessary to foster stable unions among men and women, and for Congress to act slowly on an issue on which the public remains divided." 4

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2012-FEB-24: "BLAG" has decided to appeal Judge White's ruling:

Three Republican congressional leaders -- Majority Leader Eric Cantor, Majority Whip Kevin McCarthy, and House Speaker John Boehner -- form the GOP wing of the Bipartisan Legal Advisory Group (BLAG). Their purpose is to uphold the constitutionality of the DOMA law. They have appealed Judge White's ruling to the 9th U.S. Circuit Court of Appeals. The two Democratic members -- Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer -- have declined to participate in the appeal. 5

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Webmaster's comment:

BLAG's argument that Congress should go slowly on a civil rights/equality issue raises an interesting question: at what point should equality legislation be initiated?

There have been many steps forward in equality legislation starting with -- by far the most important -- the treatment of African Americans during the 19th century in the wake of the Civil War when slavery was ended. African-American opposite-sex couples were allowed to marry. Decades later, there was the legislation to allow women to vote early in the 20th century, and to reduce racial segregation in the mid-20th century. The U.S. Supreme Court granted interracial couples the right to marry in 1967. At that time, about 90% of American adults opposed interracial marriage and 48% felt that marrying a person of another race should be prosecuted as a criminal act. The currently most active equality legislation involves granting marriage equality to the LGBT community. As of 2012, polls show that a minority of about 45% of American adults oppose same-sex marriages.

This raises some interesting questions: Is it time for marriage equality? When is the right time? How low does opposition to equality for a traditionally denigrated group have to be before the legislative and judicial systems start to act. Should Congress and the courts lead or follow public opinion? Finally, should the views of a very active minority who wants to restrict or eliminate SSM be considered if the U.S. Constitution requires that individuals and couples must be treated equally? What exactly does the word "all" mean in the Pledge of Allegiance's statement "with liberty and justice for all."

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2012-JUL-12: Appeal to the 9th U.S. Circuit Court of Appeals vacated:

Oral arguments before the Court of Appeals were to be heard on 2012-SEP-10. However, the Justice Department had petitioned the U.S. Supreme Court to review the case. Pending the decision of the Supreme Court, oral arguments in the Court of Appeals have been at least temporarily cancelled. 6

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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. "Federal Judge in California Strikes Down Key Provision of DOMA," ABC News, 2012-FEB-22, at:
  2. Dan Avery, "Bush-Appointed Judge Rules DOMA Is Unconstitutional in CA Case," QWEERTY, 2012-FEB-22, at:
  3. Chris Geidner, "DOMA's Federal Definition of Marriage Unconstitutional, Judge Rules in Golinski Case," Poliglot, 2012-FEB-22, at:
  4. Lisa Leff, "Lesbian federal worker wins health benefits case," Associated Press, 2012-FEB-23, at:
  5. "House leaders to appeal Calif. gay marriage ruling," Associated Press, 2012-FEB-24, at:
  6. Scottie Thomaston, "DOMA: Ninth Circuit oral argument in Golinski v. OPM cancelled pending Supreme Court action," Prop 8 Trial Tracker, 2012-JUL-27, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Lawsuits > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Lawsuits> here

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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