Radical Liberal Judicial Activist Usurps Democracy; Foundations Of Republic Itself Threatened
U.S. District Court Judge Jeffrey White today ruled in favor of the plaintiff in the case of Golinski v. Office of Personnel Management. Karen Golinski is a research attorney for the U.S. District Court of Appeals for the Ninth Circuit. Her colleagues with opposite-sex partners may enroll their spouses in the health insurance program that she, as a Federal judicial employee, enjoys, so she attempted to enroll her wife, Amy Cunninghis. And was denied, with the Office of Personnel Management citing the Federal Defense of Marriage Act (“DOMA”) as justification. So she challenged DOMA under the Federal Equal Protections Clause.
The Attorney General refused to defend the law, so a defense of the law was proffered by a group called the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) offered the defense on the merits. BLAG attempted to argue that the law was subject only to the deferential rational basis review, and suggested four reasons why DOMA survived that review, and Judge White offered three more he thought up all on his own:
- Congress might have wished to encourage responsible procreation and child-rearing by providing or preserving a special status for heterosexual marriage;
- Congress could legitimate hope to defend and nurture the cultural institution of traditional, heterosexual marriage;
- Congress is entitled to defend traditional notions of morality, which do not sanction same-sex marraiges; and
- Congress could believe DOMA is necessary to preserve scarce government resources.
- Congress might have wished to preserve the “traditional” definition of marriage while the several states dealt with the issue of same-sex marriage according to state laws;
- Congress could have chosen caution as a prudent path in the face of social divisiveness; and
- Congress might have wanted to provide a uniform rule applicable to all the states that created consistency in the implementation of Federal law.
BLAG sort of won the first round of the fight — instead of strict scrutiny, Judge White applied a “heightened scrutiny” but not a strict scrutiny standard to all of these potential justifications to DOMA. Under this standard, a challenged law is valid if the law is “substantially related to an important governmental objective,” provided the objective is actual and not merely theoretical. And then Judge White found that DOMA could not meet that threshold on any of these seven potential theories. Rather, he found that the law was motivated by Congress’ moral disapproval of homosexuality and noting that in the floor debate over DOMA, homosexuality was called “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles;” according to DOMA’s proponents in Congress, “Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation,” while in the Senate the stakes were described as “the moral and spiritual survival of this Nation.” In short, open animus against homosexuals was the primary motivation behind DOMA.
Judge White proceeded to analyze each of the seven grounds proffered, and found them both wanting in relation to the arguments actually considered by Congress when debating DOMA, irreconcilable with objective reality, and not congruent with reason and logic. He issued an order prohibiting anyone at OPM from refusing to enroll Amy Cunninghis, as the wife of Karen Golinski, in the insurance or other benefits programs on offer to employees of the Ninth Circuit.
Judge Jeffrey White was nominated to the United States District Court for the Northern District of California by President George W. Bush on July 25, 2002. There was no roll call vote on his confirmation.