Conservative members of Congress notified Judge Jeffrey White Friday they plan to appeal his decision declaring unconstitutional the Defense of Marriage Act, which denies federal benefits to same-sex married couples.
The notice filed by lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives comes in quick response to White’s decision earlier this week that DOMA is unconstitutional.
White is the second federal judge in the country to declare the law unconstitutional. A federal judge in Boston held the law unconstitutional in 2010. That case is on appeal.
Now the 9th Circuit Court of Appeals will become the second appellate court to take up the issue.
One interesting issue: Karen Golinski, who filed the lawsuit is a staff lawyer for the 9th Circuit Court of Appeals. She and Amy Cunninghis have been partners for 20 years, and registered as domestic partners in 1995 and with the state in 2003. They were legally married in August 2008, during the brief window when it was legal in California. That was before voters approved Proposition 8, banning same-sex marriage.
Now the 9th Circuit has the Prop. 8 case up for potential rehearing by the full court after a three-judge panel struck it down as unconstitutionally applied in California.
After Blue Cross denied Golinski’s insurance request, Chief Judge Alex Kozinski, as court administrator said that despite DOMA, Golinski was denied coveraged based on sexual orientation alone and ordered the coverage. The Office of Personnel Management refused and the lawsuit followed in 2010.
So we know how Kozinski would vote on this case, if he could. What’s the entire court do? Must they recuse because she’s a staff attorney?
Obama White House Switches Sides
Then in February 2011 President Barack Obama told the Attorney General the cease the legal defense of DOMA in any pending court actions. In particular, the challenge covers section 3 of the act, which denies marriage-based federal benefits to same-sex couples.
So a majority of a five-member member committee in Congress stepped in to say they would defend the law.
Golinski says the law violates her equal protection and due process rights.
“The passage of DOMA only serves to undermine providing a stable environment for children of same-sex married couples whose children would otherwise be raised in a household bestowed with all of the federal benefits of marriage, including financial support and social recognition,” White wrote.
As to the argument in Congress that DOMA acts to defend and nurture traditional marriage, White said, “tradition alone, however, cannot form an adequate justification for a law.”
DOMA does nothing to encourage opposite-sex couples to marry, he said.
In addition, White knocked the Congressional argument that DOMA asserts the interests of traditional notions of morality.
“The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation,” he wrote.
“The long history of discrimination against gay men and lesbians does not provide a rational basis for continuing it,” he concluded.
He ordered a permanent injunction against OPM’s decision to deny health benefit enrollment to Golinski and her wife.
The judge is no lefty. He was a Republican appointee of President George W. Bush in 2002, and the only Bush appointee on California’s Northern District Court. He’s conservative on criminal matters generally.
He served for a year as a lawyer in the U.S. Justice Department’s criminal division between 1970 and 1971 and again from 1977 to 1978 as an interim assistant U.S. Attorney in the District of Maryland. He had a private civil practice in San Francisco from 1978-2002.
Case: Golinski v. U.S. Office of Personnel Management, No. 12-15388 (9th Circ. Appeal)
Golinski opinion: No. C10-257JSW (N. District Court)