Bush-Appointed Judge Rules DOMA Is Unconstitutional in CA Case

California District Court Judge Jeffery White (right), who was appointed by our good friend George W. Bush in 2002, has just ruled that the Defense of Marriage Act (DOMA) violates the Constitution’s equal-protection clause in a case involving spousal benefits for Amy Cunninghis, the lesbian partner of Karen Golinski, who actually works for the Ninth Circuit Court of Appeals in San Francisco.

Golinski and Cunninghis registered as domestic partners in the city of San Francisco back in 1995 and with the state of California in 2003. They wed in 2008, during the brief window that same-sex marriages were recognized there—but Golinski’s employers decided they didn’t have to treat Cunninghis like Golinksi’s wife when it came to health-care benefits.

Golinski sued, claiming discrimination—and won. Back in 2009. But the Office For Personnel Management for the Ninth Court refused to follow Chief Judge Alex Kozinski’s order to process the benefits application.

The case, Golinski v. Office of Personnel Management, has been winding through the system until now.

Today, Judge White supported the 2009 ruling, saying that “considerations of discrimination against people based on sexual orientation should be held to heightened scrutiny,” because of the obvious history of discrimination face by the LGBT community, our ability to be productive members of society, the immutability of sexual orientation and our relative political powerlessness.

Judicial junkies can read the full opinion here.

Ever since President Obama announced the White House wouldn’t be defending DOMA anymore, House Speaker John Boehner (R-OH) has taken up the cause with his Bipartisan Legal Advisory Group (BLAG).

As ThinkProgress reports, this ruling could have negative implications for Boehner’s side. And, in his ruling, White chided Congress for inaction on the issue:

Here, too, 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.

Tara Borelli, staff attorney for Lambda Legal, who helped represent the women, says the ruling “spells doom for DOMA.”

The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment. The Court agreed with us that sexual-orientation discrimination by the government should receive heightened scrutiny under the Constitution. It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive.”

Golinski expressed her gratitude over the decision as well:

“I am profoundly grateful for the thought and consideration that Judge White gave to my case,” Golinski said. “His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues. This decision is a huge step toward equality.”

Oh we can just hear Dubya moaning about “dem gol-durn’ activist judges.” At least until someone explains that he hired White in the first place. D’oh!

Photo: United States District Court for the Northern District of California, Lambda Legal

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  • Cam

    Sorry bigots, but when even Bush appointees are attacking DOMA your days are numbered.

  • Steve

    This was a District Court.

    Now, we need the Appeals Court, and the Supreme Court, to agree.

    That ought to take a few months. It will take a few years, at least.

  • bystander

    Senatorial Courtesy, ideology matters alot less when it comes to district court judges. Generally the president give more deference to senators when nominating these trial judges. Ideology comes far more into play for appeals court judges and Supreme Court picks.

  • Mark

    This is great and all, and I’m happy for them, but I just wanted to say it’s kind of funny to me how close one of these lesbians surnames is to “cunnilingus” – she probably gets a lot of shit for that…

  • Out Military

    Great news! Thanks to DOMA legally married same-sex military spouses are denied health insurance, commissary and other base privileges, housing allowance, etc. as compared with their opposite-sex married counterparts. For those interested – has been providing a supportive environment for friending, sharing and networking between Gay active military, vets and supporters since December, 2010.

  • Dave


    This is a lot better than how the Obama and his administration have defended DOMA more than any other president and Obama gave a punch in the face to all gay men, bisexuals, lesbians, and trans people with his “Gawd’s in the mix!” speech defending DOMA.

  • CJ

    Between some Bush appointees (w/ PROP 8, DOMA) and the Log Cabin Republicans (w/ DADT) there’s been a lot of progress this past year via the courts. Obama has certainly made progress but his “evolving” is getting rather annoying.

    Evolving = bigotry, discrimination, 2nd class, I’m better than you, etc.

  • Michael Bedwell

    Amazing how many articles about this are soft-pedaling—when they aren’t outright ignoring—the fact that for two years Obama, Inc., fought against Golinski and her wife even tho the CIRCUIT judge ruled that they COULD let them have the insurance WITHOUT violating DOMA. But as gay community support began to erode for him over his defense of DOMA in response to this and other cases, some reelection advisor apparently said, “We’d better look at the numbers again,” and, VOILA, suddenly Obama was saying DOMA was unconstitutional even tho nothing had changed about it or the US Constitution in the interim.

    MORAL OF THE STORY: just cause your hubby comes home with flowers doesn’t mean he won’t beat you again. And, even were the Supremes to overturn DOMA tomorrow, Golinksi’s wife went with out health insurance for three years simply because Obama, Inc., couldn’t get their fucking act together when they could have let her have it in February of 2009 and just blamed the judge for all those antigay voters they constantly seem worried about.

    SEE: continuing to enforce DOMA even though there are historical examples of Presidents refusing to enforce laws they believe are unconstitutional and got away with it. And Obama refusing to order the Pentagon to give gay military partners those benefits that are NOT banned by DOMA. Etc., Etc., Etc.

  • the crustybastard

    Golinski sued, claiming discrimination—and won. Back in 2009. But the Office For Personnel Management for the Ninth Court refused to follow Chief Judge Alex Kozinski’s order to process the benefits application.

    Um, no. That’s not correct.

    The OPM is a federal agency — not the Ninth Circuit’s HR division. John Berry was the head of OPM at the time. He was Obama’s token homo.

    So AFTER the circuit’s chief judge (who is entitled by federal statute to make such determinations) decided that a specific federal employment act made it entirely permissible for Golinski to put her wife on the court’s Blue Cross plan, Obama forced Berry tell Golinski to take her court order and fuck herself.

    This is WHILE Obama was telling America how important it was that everyone have healthcare. Hypocrite.

    Because the Obama Administration (through the OPM) chose to ignore Judge Kozinski’s order, Golinski had to sue the government. Again. She won again.

    Will our bigot-in-chief once again decide to just ignore the judge’s decision? It would surprise me not at all.

  • ben pin wang

    In the ruling Judge White mentioned clearly: “…this Court finds that Congress cannot,…wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples.” Which means people should just stop going to court trying to deny gay people’s rights to marry. It wastes so much tax payers’ money and time and their own precious lives. Why don’t they use that time and money to educate themselves about the economy, the new technology, the abuse of human rights around the world, the environment, or even how to eat and live healthier, or how to help the hungry and the homeless? Well, do the politicians really not care? When will the Americans get smarter?

  • Robert in NYC

    Maggie Srivastav and her sidekick Brian Brown will be having a conniption about this one. Expect the usual rants coming later. The more victories we win, the more NOM et al have to spend millions of dollars fighting them, all for nothing. Once the major donors start seeing more defeats and wasting vast sums of their money, I wouldn’t mind betting NOM et al will have to shut down. It’s just a matter of time.

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