Federal Judge Upholds Federal DOMA

District court ruling declines to make finding on constitutionality of California’s marriage law

U.S. District Judge Gary L. Taylor ruled on June 16 that the portion of the federal Defense of Marriage Act (DOMA) that excludes same-sex partners from access to any of the federal rights or benefits available to married opposite-sex couples does not violate the federal Constitution.

In the same decision, Taylor found that it was appropriate to abstain from deciding the constitutionality of California’s existing marriage laws, in light of pending litigation in the state courts.

Taylor was ruling in a case brought by a private lawyer on behalf of two Orange County gay men, Christopher Hammer and Arthur Smelt. The case was undertaken against the advice of leading gay rights legal groups that have been trying to avoid a major federal same-sex marriage or DOMA case that they fear might significantly boost support for an anti-gay federal marriage amendment in Congress.

Such groups have instead been focusing on winning marriage rights under state constitutional provisions, as was done in the 2003 Goodridge ruling in Massahusetts.

Indeed, the National Center for Lesbian Rights, which is the leading gay marriage advocate in the pending state court marriage litigation in California, filed a brief in the case urging the judge to avoid ruling on the validity of California marriage laws.

Much of Taylor’s opinion is devoted to explaining why he would not rule on the California statute, a finding he based on Supreme Court precedent that discourages federal constitutional rulings on matters that might be resolved as a matter of state law. In general, federal courts hold back from cases that involve a “sensitive area of social policy” that might be settled in state court, and on which the resolution in state court is uncertain. Noting that the California Supreme Court typically takes a broader view of privacy rights, due process and equal protection than federal courts, Taylor concluded that “the final resolution of the Marriage Cases is uncertain.”

Taylor found that the issue already being debated in the state judiciary is “novel and of sufficient importance that the California courts ought to address it first.”

Turning to the DOMA challenge, Taylor first found that the plaintiffs lacked “standing” to challenge the part of DOMA that allows the states to avoid recognizing lawful same-sex marriages from other states, since they did not get married in Massachusetts, the only state where gay marriage is legal. The two men are registered as domestic partners in California, but have indicated no intention to move to another state and seek recognition of that partnership. Since federal court jurisdiction is limited to “actual cases and controversies,” this part of the plaintiffs’ challenge was disqualified.

However, Taylor found that as registered California partners, the couple has standing to challenge the constitutionality of the ban established by DOMA on same-sex couples qualifying for federal benefits. Taylor found that the Supreme Court’s refusal in 1972 to review a Minnesota same-sex marriage decision did not establish a binding federal precedent on the issue of DOMA’s constitutionality, but he concluded that the justification for DOMA is appropriately subject to only the least demanding standard of judicial review—that it be rational.

Taylor ignored the assertion made by Supreme Court Justice Sandra Day O’Connor, in her 2003 concurrence in Lawrence v. Texas, the Texas sodomy case, that anti-gay discrimination should be subject to “more searching” scrutiny because of its impact on important aspects of intimate association. Instead, he found that it was at least rational for Congress to have decided to exclude same-sex couples from all federal rights and benefits as a way of signaling to society that opposite-sex relationships are more highly valued due to their central function in procreation and child-raising.

“The Court finds it is a legitimate interest to encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating and rearing children by both biological parents,” wrote Taylor, who did not point to any scientific basis for his view, but added, “It is for Congress, not the Court, to weigh the evidence.”

Having thus evaded any obligation to justify his reasoning, Taylor asserted that “Congress could plausibly have believed sending this message makes it more likely people will enter into opposite-sex unions, and encourages those relationships. This question is at least debatable.”

This dubious “debatable” proposition, according to Taylor, was enough to make DOMA rational for constitutional purposes. The judge offers no explanation for how forbidding same-sex couples who have succeeded in getting a state to let them marry from accessing federal benefits will somehow have the effect of encouraging opposite-sex couples to marry and procreate.

The plaintiffs’ attorney, Richard Gilbert, plans to appeal to the U.S. Court of Appeals for the 9th Circuit in San Francisco, according to a June 17 report in the San Francisco Chronicle.

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