A Victory on DOMA For Karen Golinski

Liberty & Justice by Mirko Ilic

Well, while we ponder what will transpire on the mind numbingly restricted “win” for the Perry Plaintiffs in the 9th Circuit, yet another Northern District of California (NDCA) judge has followed in Vaughn Walker’s footsteps and has sent a large and loud message in favor of Constitutional protection of marriage equality. Judge Jeff White has doomed DOMA in the Karen Golinski case!

These motions compel the Court to determine whether the Defense of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms. Golinski, violates the United States Constitution by refusing to recognize lawful marriages in the application of laws governing benefits for federal employees. Having considered the parties’ papers, relevant legal authority, and the record in this case, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss.
Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny. See also In re Levenson, 587 F.3d at 931 (holding that “some form of heightened constitutional scrutiny applies”); Witt, 527 F. 3d at 824-25 (Canby, J., concurring in part and dissenting in part) (“classifications against homosexuals are suspect in the equal protection sense” as gay and lesbian individuals have “experienced a history of purposeful unequal treatment [and] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” and “they also exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are a minority.”). In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority.

The finding of heightened scrutiny because sexual orientation is exactly the proper finding and the further step that Judges Stephen Reinhardt and Michael Hawkins cowardly failed to take in the recent Perry decision. It is the right finding.

Judge Whit goes on in Golinski to knock back all the lame justifications given by H8ters for DOMA, much the same way Walker did at the trial level in Perry. Responsible procreation and child-rearing, nurturing the institution of traditional, opposite-sex marriage, defending traditional notions of morality, preserving scarce government resources….he kills them all. As an extremely nice touch, White also frames his decision against the Constitutionality of DOMA on alternate concurrent inspection as well, fully analyzing and finding against it under a rational basis analysis as well as heightened scrutiny. This dual track type of analysis could have, and should have been done by Reinhardt in Perry, but, for some inexplicable reason, was not.

In concluding, White even gets in a shot at ‘Ole Balls & Strikes Roberts:

As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. … it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Nominee).

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse. Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan. The Clerk is directed to enter judgment in favor of Ms. Golinski and against defendants the Office of Personnel Management and its director John Berry as set out herein pursuant to Federal Rule of Civil Procedure 58.

That is a nice day’s work Judge Jeffrey White. Well done!

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
26 replies
  1. emptywheel says:


    White is the guy who wrote the Padilla Yoo decision, right? And a few more nice pieces of judgery?

  2. Petrocelli says:

    Great Roberts’ quote tossed into the ruling by Judge White.

    Slowly but surely, America crawls towards the 21st Century …

  3. Teddy Partridge says:

    I’ve always suspected that Roberts’ “balls and strikes” was a coded reference to some kind of closeted-GOP S&M play, for Lindsay Graham’s titillation during a boring hearing.

    But, otherwise, huzzah!

  4. Peterr says:

    pdf, p. 41:

    . . . this Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law.

    Gotta love it.

    The quote from Kennedy at the end is a nice touch as well:

    Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

    But you’re right, bmaz — quoting Roberts at his confirmation hearing is a gem. Roberts made the remark as a way of going after so-called “activist” judges, but White turned it around to say Marbury v Madison isn’t dead.


  5. bmaz says:

    @Peterr: Yeah, I think white is also taking a shot at the 9th – Reinhardt and Hawkins – for not getting on with the finding that Constitutionally, legally, has to be made. Which was exactly my beef with the Perry decision. You are a fucking court, sexual orientation discrimination has created a defined subset of citizens being discriminated against, and that is not Constitutionally tolerable. You duty is to say so; that is what federal appellate courts are for. Get on with it.

  6. Teddy Partridge says:

    @bmaz: A generation of Federalist Fuckers has turned federal courts on their head. Most lawyers are now trained to instinctively defend any “narrow” decision for only taking the smallest permitted bite of the apple. Even though the activists are almost entirely on their side now, the rightwingers still issue coded challenges to activist judges simply because it’s in their DNA.

  7. bmaz says:

    @Teddy Partridge: Yeah, but Steve Reinhardt is usually literally the most wild eyed liberal judge in the supposedly wildly liberal 9th Circuit. Most people that really follow federal appellate law would probably pick him if asked to name the most liberal Circuit judge in the country. And he bailed out like a chickenshit in what should have been a coda to his great career.

  8. MadDog says:

    As much as I applaud White’s decision, I’m still concerned that because the 9th is considered an outlier in the federal judiciary, it tells us less about what the rest of country’s federal judiciary thinks in this area than we would want.

  9. Teddy Partridge says:

    @bmaz: I think every single septagenarian federal judge looks wistfully at Elena Kagan, rues his or her own outspokenness as a ‘youngster’ and sighs, “I coulda been a contendah!”

    Trimming sails as we age is especially attractive to those in power, I’d imagine. Wanting to leave a legacy loved by all, Steve trimmed at the wrong moment having been handed the perfect case for a lovely conclusion of his career. Bad timing, bad instincts, bad judging.

  10. Peterr says:

    @MadDog: Which brings us back to Marbury v. Madison. White is appealing to the foundational case for the Judicial Branch, reminding his colleagues that “what the rest of the country thinks” is not what the job of a federal judge is all about.

  11. EH says:

    @Teddy Partridge: Most lawyers are now trained to instinctively defend any “narrow” decision for only taking the smallest permitted bite of the apple.

    The narrower the decision, the more status quo persists. :)

  12. bmaz says:

    @MadDog: I dunno, White is a Bush nominee. I think the handwriting is very much on the wall, and is becoming more clear by the day. It is really pretty hard to make a compelling case in the opposite direction. Randy Smith gave it his best shot in Perry, and looked like an idiot for the effort.

  13. bmaz says:

    @Peterr: Yep. Exactly right. And I am absolutely and positively convinced Tony Kennedy has a bead on not only that truth on social issues, but is NOT going to go down on the wrong side of the historical ledger on these sexual discrimination issues. That is why I am so fucking livid at Reinhardt.

  14. MadDog says:

    OT – I don’t know whether a post is planned here to discuss and dissect the “Jeh Johnson Speech at Yale Law School” as made available over at Lawfare, but it would sure have my vote.

    Particularly as having been one of those Jeh Johnson refers to this way:

    “…On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.” Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context. Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination”…”

    The last time I knew it, the CIA is not a military organization.

    And oh by the way Jeh, in regard to this:

    “…Sixth: contrary to the view of some, targeting decisions are not appropriate for submission to a court. In my view, they are core functions of the Executive Branch, and often require real-time decisions based on an evolving intelligence picture that only the Executive Branch may timely possess. I agree with Judge Bates of the federal district court in Washington, who ruled in 2010 that the judicial branch of government is simply not equipped to become involved in targeting decisions.[9]…”

    Perhaps Jeh could explain what part of our Constitution says that the Executive branch is judge, jury, and executioner of US citizens without ever providing the 4th Amendment’s due process?

  15. MadDog says:

    @MadDog: And furthermore, I’d like to see Jeh Johnson explain with a straight face why this isn’t just another example of the very same “outcome-based legal rationalization” we saw under the Bush/Cheney regime from John Yoo and Fredo Gonzales, or in other words “the ends justify the means”.

  16. MadDog says:

    @MadDog: “…My legal colleagues and I who serve in government today will not surrender to the national security pressures of the moment…”

    Gobsmacked I am!

  17. bmaz says:

    @MadDog: Yeah, I am not sure that an American citizen leaving brunch in Yemen, a country we are not at war with nor in, is on a battlefield either. But, what the hell, why trifle with such inconvenient concepts?

  18. bmaz says:

    @Phil Perspective: Supreme Court Justices are always VERY much more than one opinion. Why would Kennedy care? Because the history of opinions he has written from Lawrence v. Texas, to Romer, to several others, demonstrate a jurist deep into and fairly progressive on social justice issues. I have laid out this case on Kennedy many times actually.

  19. DWBartoo says:


    Love the call-out of Congress and the judiciary, Peterr, thank you for underlining it.

    Might be a couple of other “areas” where those two groups ought to get their heads out of the sand … or where ever those heads might be.

    Thank you, Judge Jeff White!

    Thank you, bmaz, as well … for always bringing us some of the very best legal analysis to be found anywhere and inspiring some of the best and most well-informed comments on the threads, a much-appreciated characteristic of EW’s place, and her critically important work.


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