With the center of attention directed to the Republican presidential primaries, contentiousness has overshadowed constitutionality. GOP contenders have hardly courted the Lesbian Gay Bisexual Transgender [LGBT] community as a voting group. That is why the Republican hobby-horse of last year, the Defense of Marriage Act [DOMA], is receiving less attention than it otherwise might and a ruling against it passed almost unnoticed.
A key provision of DOMA has been found unconstitutional. Judge Jeffrey White, a President George W. Bush appointee to the U.S. District Court in San Francisco, issued the ruling in a case involving a request for benefits for a same-sex spouse. White said the stated goals of DOMA could not pass either the “heightened scrutiny” test or even a lower “rational basis” threshold.
DOMA “treats gay men and lesbians differently on the basis of their sexual orientation” without any legal basis, said White. “The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is ‘to define the liberty of all, not to mandate our own moral code,’” Justice White wrote. White’s federal court decision is similar to a 2010 ruling in Massachusetts in which Justice Joseph Tauro said the federal government had no business seeking to regulate marriage rules.
Last year the Obama administration directed the Department of Justice not to prosecute cases under DOMA because it found the 1996 law to be unconstitutional. Attorney General Eric Holder castigated “the legislative record underlying DOMA’s passage” because of “the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.” Holder called DOMA’s “numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships” indefensible.
When a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right, such as marriage, it violates the Equal Protection Clause of the 14th Amendment to the Constitution. That clause denies states the ability to discriminate. While the argument of the Equal Protection Clause exists, DOMA is a federal law. The Due Process Clause of the 5th Amendment applies. As the Supreme Court has found, the Due Process Clause operates against the federal government just as the Equal Protection Clause does against the states. Actions by the federal government that classify individuals in a discriminatory manner violate that Due Process protection.
DOMA cannot demonstrate a rational basis to any legitimate purpose. Its only purpose is to discriminate, as Judge White ruled. If a law discriminates between one group of people and another, the government must demonstrate a rational basis for doing so. A law that discriminates on the basis of race, gender, or another trait such as religion or political affiliation can be constitutional only if there is a very compelling reason for the distinction. That is called heightened scrutiny. Since DOMA has no such reason, it fails the test.
The Defense of Marriage Act is, “An act to define and protect the institution of marriage.” DOMA says, “the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.” By contrast, state laws may exist that allow civil unions between people of the same sex, but that creates a separate class of people under law, separate but equal. That is discriminatory.
Last year the House objected to the administration’s decision to cease DOMA prosecutions as unconstitutional. In so doing, the Republican House wanted taxpayers to pay a half-million dollars to defend DOMA. House Speaker Boehner wrote to former Speaker Pelosi, “Had the BLAG [Bipartisan Legal Advisory Group] not taken this action, the constitutionality of the law would have been determined by a unilateral action of the President. By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality.”
But that was last year, before Congressional approval ratings tanked, the government faced shutdowns and default, and the debt ceiling crisis lowered the US credit rating. Last year the GOP thought that there was a defense for the Defense of Marriage Act. This year it is clear that Constitutional questions about Civil Rights, such as same-sex marriage, are not vote-getters for Republicans. Boehner is getting his desire for the courts to decide about DOMA. He is just not getting the outcome he wanted.