February 23, 2012 3:06 pm ET - by Carlos Maza
Wednesday afternoon, U.S. District Court Judge Jeffrey White issued a ruling declaring that the federal Defense of Marriage Act (DOMA) – which prohibits the federal government from recognizing and providing benefits to same-sex spouses – violates the Constitution’s “equal protection” clause.
Although White’s decision isn’t the first time a federal judge has ruled against DOMA’s constitutionality, it represents a unique and significant legal defeat for opponents of marriage equality:
1. Judge White Was A Bush Appointee. While opponents of gay marriage have never hesitated to attack judges who vote in favor of marriage equality, they’ll have a difficult time figuring out reasons to criticize Judge White. White was confirmed to the federal bench by a voice vote in the Senate after being nominated by President George W. Bush in 2002. He’s the only judge confirmed to California federal courts during Bush’s two terms. After being nominated, White was approved by a bipartisan judicial selection committee and received praise from Democrats and Republicans alike. While critics may rail against the substance of White’s decision, they’re unlikely to gain much traction accusing him of liberal bias or judicial activism.
2. Heightened Scrutiny, Not Rational Basis. White’s decision marks the first time a federal judge deciding a DOMA case has explicitly declared that laws that discriminate against people on the basis of sexual orientation should be held to a “heightened scrutiny” standard instead of the more lax “rational basis” standard. If upheld by other courts, that standard will make it extremely difficult to uphold bans on same-sex marriage. The shift in the standard of review is significant considering that it’s the first major federal court decision on DOMA since the Obama administration recommended the “heightened scrutiny” standard in February 2011.
3. Calling The Right’s Bluff. White’s decision is also significant because it’s the first opportunity that House Republicans have had to try to preserve DOMA in federal court. After the Obama administration announced that it would no longer be defending DOMA, House Republicans shelled out big money to mount a defense of their own, including hiring powerhouse attorney Paul Clement. At the time, anti-gay groups like the National Organization for Marriage (NOM) and the Family Research Council (FRC) cheered House Republicans’ actions, claiming that DOMA would finally get a real defense in court. White’s decision is a sobering warning that high-powered attorneys might not be enough to keep DOMA alive.
4. Dispelling Anti-Gay Research And Junk Science. White’s decision is remarkable for the extent to which it debunked the evidence presented by Clement in opposition to same-sex marriage. Long before the decision was released, Clement’s defense was plagued with accusations of distorting research, avoiding cross-examination, and relying on widely discredited junk science. White’s ruling further demonstrated the lack of credible evidence presented in opposition to marriage equality.
Notably, he rejected the claim that same-sex couples were unfit to raise their own children, declaring:
More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by opposite-sex parents.
White went on to criticize the evidence Clement provided on same-sex parenting, criticizing his sources as “questionable,” “non-scientific,” and “without peer review.”
White also dismissed concerns that marriage equality would discourage heterosexual couples from procreating, an argument that NOM’s Maggie Gallagher last year described as a sure-fire way to ensure DOMA was upheld. Despite Clement’s best efforts, he was unable to conjure up enough evidence to convince White that there was even a rational basis for DOMA’s existence.
White’s decision likely won’t be the final word on DOMA’s constitutionality, but it’s a rough start for opponents of gay marriage. Despite investing hundreds of thousands of dollars in mounting a first-class defense of the law, House Republicans were unable to convince even a Bush-appointed judge to deem DOMA constitutional. As Tara Borelli, one of the leading attorneys in the case, recently said, “this ruling... spells doom for DOMA.”
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