Yesterday, Judge Jeffrey White of the Northern District of California ruled (in Golinski v. U.S. Office of Personnel Management) that the Defense of Marriage Act could not constitutionally be applied to bar a lesbian employee of the Ninth Circuit from receiving federal health-insurance coverage for her same-sex spouse. Judge White granted summary judgment for the plaintiff employee (which means that he concluded that there were no disputed issues of material fact that needed to be resolved at trial). Judge White’s ruling is the first to determine that DOMA is subject to “heightened scrutiny,” rather than more deferential “rational basis” review (though he also opined that DOMA would flunk rational-basis review). Because the Obama administration abandoned its duty to defend DOMA, the federal government’s interest was represented by the U.S. House of Representatives.
White, I’ll note, was formally appointed to the federal bench by President George W. Bush in 2002 (after passing through the screening committee that Democratic senators Dianne Feinstein and Barbara Boxer set up to exclude judicial conservatives).
White’s ruling embodies a lot of the same defects that I’ve identified before in other same-sex marriage opinions, and I’m not going to march through them here. I’ll limit myself to one striking example: White “finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power.” (Slip op. at 23.) A supposedly compelling piece of evidence: “Only a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” (Slip op. at 22.) In short, gays and lesbians lack “meaningful political power” because they haven’t succeeded in broadly redefining marriage, so White will subject DOMA to heightened scrutiny in order to redefine marriage for purposes of federal law. What a farce.