Attempting to Preserve Equal Protection for Gays and Lesbians Commentary
Attempting to Preserve Equal Protection for Gays and Lesbians
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JURIST Guest Columnist Julie Nice of the University of San Francisco School of Law says that the ruling in Golinski continues the momentum of recent decisions rejecting defenses that deny the designation and benefits of marriage to same-sex couples and their children…

If you are a casual spectator of gay rights battles, you have probably been focused on the fate of California’s same-sex marriage ban. Proposition 8 stripped marriage rights for same-sex couples and has failed to withstand even rational basis review in the US District Court for the Northern District of California and the US Court of Appeals for the Ninth Circuit. It is still in force, however, as Proposition 8 proponents appeal its invalidation. Or you may have watched with some surprise as politicians in three states — New York, Washington and Maryland — have approved same-sex marriage without being forced to do so by the courts. So you might have missed the importance of Golinski v. US Office of Personnel Management, a sleeper case decided recently by the US District Court for the Northern District of California in the stalwart effort by Ninth Circuit staff attorney Karen Golinski to add her lawful same-sex spouse to her federal health insurance benefits.

Karen Golinski and her wife, Amy Cunninghis, have been in a relationship for over 20 years. They registered as domestic partners with San Francisco in 1995 and with the state of California in 2003. They became legally married during the window in 2008 when the state allowed same-sex marriage. Then Golinski sought to add her wife to her existing federal health insurance coverage. The federal government refused to recognize her lawful California marriage. So Golinski filed an administrative employment complaint, which was heard by Ninth Circuit Chief Judge Alex Kozinski as arbiter.

Kozinski ordered the federal Office of Personnel Management (OPM) to add Golinski’s wife to the health insurance plan. Despite this, OPM repeatedly refused to comply with his administrative orders, invoking the federal prohibition against recognizing same-sex marriage enshrined in Section 3 of the Defense of Marriage Act (DOMA). So Golinski was forced to file a federal lawsuit challenging the constitutionality of DOMA. In another twist along the way, President Barack Obama directed the Department of Justice to cease its defense of DOMA. As a result, the defense of DOMA was authorized by a congressional committee, which intervened as the Bipartisan Legal Advisory Group of the US House of Representatives (BLAG).

Now Judge Jeffrey White has ruled that the federal refusal to recognize Golinski’s lawful marriage and thereby prevent health insurance coverage to her wife violated her Fifth Amendment right to equal protection under the law.

What is stunning about the Golinski decision is what it reveals about how far gay rights have come. In this rather run-of-the-mill employment benefits dispute, a federal district court’s methodical application of judicial reasoning from recent gay rights victories has resulted in a sweeping ruling in Golinski’s favor.

From the outset of the Golinski decision, it was clear that the Supreme Court’s gay rights trilogy has transformed the constitutional calculus. Recall that gays prevailed against voters’ amendment of Colorado’s Constitution to prohibit them from receiving anti-discrimination protection in Romer v. Evans, against the criminalization of same-sex sodomy in Lawrence v. Texas, and against the claim that religious liberty trumped a public law school’s anti-discrimination policy in Christian Legal Society v. Martinez.

The district court in Golinski emphasized that these recent Supreme Court decisions governed its decision, rather than a prior anti-gay federal court of appeals decision whose “foundations” and “premises” have “sustained serious erosion.” In other words, out with justifying discrimination against gays and lesbians based on criminalization, moral condemnation, and/or behavioral understandings of sexual orientation. It’s a new day, with traditional assumptions about gays now subjected to judicial review as to whether they cohere with societal reality.

So what is a post-trilogy district court to do? First the court conducted a routine suspect-class analysis. Relying on research findings by several of the same prominent scholars who testified during the federal Proposition 8 trial, the district court ruled that the class of gays and lesbians has suffered a history of discrimination, that the class remains relatively politically powerless against majority prejudices, that the trait defining the class is irrelevant to an individual’s ability to contribute to society, and that the trait is a “defining or immutable” characteristic. So the court applied heightened scrutiny, in this case the intermediate standard of requiring the government to demonstrate that its classification is “substantially related to an important governmental objective.” Next the court examined the proffered justifications for DOMA, some of them surprising.

While anti-gay rights forces frequently base their moral condemnation on the presumption that gays are sexually promiscuous, it is strangely the promiscuity of heterosexuals that has emerged as the primary justification for banning same-sex marriage. Indeed, BLAG led its defense of DOMA with this “responsible-procreation” justification. Here is the basic argument: same-sex couples already procreate responsibly by making enormous investments in assisted reproductive technology or adoption to raise children, and marriage should be reserved for encouraging opposite-sex couples to procreate more responsibly because only they have the joint ability to conceive irresponsibly.

The district court in Golinski wholly rejected this defense, however. The court found no credible evidence to dispute the consensus that same-sex couples are equally capable as parents. The court also found that DOMA’s denial of federal recognition of lawful same-sex marriages “does nothing to encourage or discourage opposite-sex couples from having children within marriage”; “does nothing to support opposite-sex parenting”; “does not alter parental rights under state law”; and “only serves to undermine providing a stable environment for children of same-sex couples” in violation of equal protection.

Rejecting BLAG’s other arguments, the district court found that neither tradition alone nor moral disapproval justify a discriminatory classification. It found no evidence showing federal recognition of lawful same-sex marriages would affect the government fisc. The court also chastised BLAG for contending that DOMA would maintain caution and the status quo. Instead, the court noted that DOMA represented a “stark departure” from the federal tradition of deferring to state law on marriage and that Congress may not “bury its head in the sand and wait for controversy to pass” while constitutional injuries occur. The court also found that DOMA undermined administrative consistency. Finally, the court noted, “having tried on its own,” it was unable to “conceive of any additional interests that DOMA might further.”

Following the emerging trend of inoculating its decision from an appellate court that might disagree with applying heightened scrutiny, the district court also ruled, in the alternative, that none of the justifications would survive even rational basis review. Noting that rational basis review is “not ‘toothless,'” the court searched for a rationale with some “footing in the realities of the subject,” but found no such rational relation to a legitimate government interest here.

Twice this district court commented on DOMA’s legislative history, which is replete with animus toward gays and lesbians. Members of Congress referred to gays as “immoral,” “depraved,” “unnatural” and as “homosexual extremists” seeking “to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle,” among other choice descriptions. This court concluded that something short of animus may have motivated DOMA. Quoting Justice Kennedy’s concurrence in a disability discrimination case over a decade ago, the district court reasoned that prejudice might result not only from malice and animus but also from insensitivity or an instinct to guard against those who are different. Whether motivated by animus or prejudice, the court ruled DOMA discriminates against gays and lesbians in violation of equal protection.

As I was describing this decision to some friends, one looked up and queried: “How many times do gays have to win before they win?” It’s a good question. To be sure, the saga is far from over. But momentum seems to be building from a series of recent decisions by state and federal courts across the nation rejecting the primary “responsible procreation” justification as well as other defenses designed to deny both the designation and benefits of marriage to same-sex couples and their children. A new day really seems to have dawned when a federal district judge performs his regular job of enforcing equal protection by refusing to allow the government to rely on tired assumptions that “exceed the bounds of rational speculation” to justify discrimination based on sexual orientation.

Julie Nice is the Herbst Foundation Professor of Law at the University of San Francisco School of Law. Her scholarly work focuses on constitutional law, poverty law and sexuality law. Nice has received numerous awards for her law teaching, including the 2011 and 2010 Distinguished Professor Award at the University of San Francisco. Her forthcoming article tracing the genealogy of the responsible procreation defense is titled The Descent of Responsible Procreation: A Genealogy of an Ideology.

Suggested citation: Julie Nice, Attempting to Preserve Equal Protection for Gays and Lesbians, JURIST – Forum, Mar. 11, 2012,

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