Rulings Against Section 3 of DOMA Accumulate with S.J. in Golinski Case

Karen Golinski and Lambda Legal are the winners in another round of the lawsuit attempting to win for Ms. Golinski the ability to obtain insurance coverage for her same-sex spouse, Amy Cunninghis, from her employer, the U.S. Court of Appeals for the 9th Circuit.  On February 22, U.S. District Judge Jeffrey S. White (N.D.Cal.) granted summary judgment to Golinski on her claim that Section 3 of the Defense of Marriage Act, as applied to her, violates her 5th Amendment right to equal protection of the law from her government employer.  Golinski v. Office of Personnel Management, 2012 WL 569685.

In the course of making this ruling, Judge White determined that Section 3 embodies discrimination based on sexual orientation and thus is subject to judicial review using "heightened scrutiny."  To reach this conclusion, Judge White concluded that the 9th Circuit's standing precedent on sexual orientation discrimination claims, High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (1990), is no longer good law. 

High Tech Gays, which rejected a claim for heightened scrutiny of the anti-gay procedures used by the Defense Department to grant security clearances to employees of defense contractors, was squarely based on the proposition that because sodomy laws were constitutional, gays could not claim heightened or strict scrutiny for equal protection claims against the government, and relied on Bowers v. Hardwick, 478 U.S. 186 (1986), which rejected a due process challenge to the Georgia sodomy law, to reach that holding.  Bowers was overruled in 2003 by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, but lower federal courts in the 9th Circuit have continued to treat High Tech Gays as binding precedent simply because the 9th Circuit has never overruled or modified its holding.  (In the litigation against the "don't ask don't tell" policy in the 9th Circuit, heightened scrutiny was premised on due process rather than equal protection, the courts continuing to hold to High Tech Gays as a precedent on equal protection but finding that some sort of heightened scrutiny should be used because the military policy burdened the liberty interest in sexual autonomy identified by the Supreme Court in Lawrence.)

Judge White concluded that High Tech Gays is no longer good law, not only because Lawrence overruled Bowers, but also because the developments subsequent to High Tech Gays Romer v. Evans and Lawrence most significantly — undermined its reasoning.  White cited 9th Circuit authority holding that when subsequent rulings by the Supreme Court or the 9th Circuit itself undermine one if its precedents, district courts are no longer bound by the undermined precedent.

Thus, he concluded, the question of what the appropriate level of judicial review should be for sexual orientation discrimination claims is an "open question" in the 9th Circuit.  Proceeding from that point, White evaluated the various factors that the Supreme Court has discussed in equal protection cases and concluded that sexual orientation claims should be subjected under that analysis to heightened scrutiny, which shifts the burden to the government to show that the discriminatory policy significantly advances an important government interest.  Then taking his cue from the recent spate of rulings on DOMA claims by other district judges, he concluded that Section 3 could not survive heightened scrutiny.  Hedging his bets and armoring his decision against appeal, he also concluded that Section 3 could not survive less demanding rational basis review, either.

The policy reasons for adopting Section 3, taken from the legislative history, pointed to moral disapproval of gay people and their relationships as the main inspiration for the statute, which was passed in the wake of same-sex marriage litigation in Hawaii.  Finding these justifications, as well as arguments about procreation and child-rearing, inadequate even to meet the less stringent rational basis test, Judge White also rejected the new arguments raised by counsel for the House "Bipartisan" Legal Advisory Group (BLAG), which has intervened as a defendant in light of the Justice Department's announcement last year that it would no longer defend Section 3 because it had concluded that Section 3 violates Equal Protection, as well as arguments raised by anti-gay amicus parties.  Most of the "newer" arguments had actually been raised by the Justice Department in the pending appeal of the Gill ruling in the 1st Circuit in Boston, but then abandoned when DOJ changed its position on the constitutionality of DOMA, only to be reasserted by counsel for BLAG. 

This case began when Golinski and Cunninghis married in California during the summer of 2008, and Golinski quickly applied to have Cunninghis covered as a spouse under her work-related health benefit plan.  As a 9th Circuit employee, her benefits were provided from a private insurance company under contract with the federal Office of Personnel Management (OPM).  The plan administrator refused to enroll Ms. Cunninghis on the ground that DOMA Section 3 prohibited recognizing the marriage.  Golinski filed a grievance with the 9th Circuit's internal dispute resolution system, and Chief Judge Alex Kozinski, sitting in an administrative capacity, ruled in her case that the relevant federal statutes on benefits could be construed in such a way that Ms. Cunninghis could be covered as a family member. OPM resisted this conclusion and refused to comply with Judge Kozinski's order.  Subsequent new litigation in the regular Article III courts was commenced when an attempt to get direct judicial enforcement of Judge Kozinski's order faltered on jurisdictional grounds.

Judge White concluded that Judge Kozinski's findings as to the interpretation of the statute were based on "unpersuasive" reasoning, as the statute carried an unambiguous and limited definition of "family member" that could not be stretched to cover a same-sex spouse in light of Section 3.  Thus, the case rose or fell based on whether Section 3 was constitutional.  Having concluded that it is not, Judge White issued a permanent injunction against OPM and its Director, openly-gay John Berry, preventing them "from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan."  (The insurer, Blue Cross, could not take action so long as OPM refused to authorize the coverage.)  Presumably Paul Clement, the lead attorney hired by BLAG to defend DOMA, will file an appeal in the 9th Circuit, where a petition for en banc review in Perry v. Brown, which held Proposition 8 unconstitutional, is now pending as well.

10 thoughts on “Rulings Against Section 3 of DOMA Accumulate with S.J. in Golinski Case

  1. In doing so, it misinterpreted Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) Witt dealt with due process and equal protection claims. The district court held that: [T]he Ninth Circuit in Witt v. Department of Air Force merely found, in the context of military policy where judicial deference

  2. That’s correct. In Witt, the 9th Circuit panel, feeling bound by Circuit precedent, would not apply heightened scrutiny to Witt’s Equal Protection claim. However, they found that Witt’s due process claim was entitled to a more demanding level of judicial review than rational basis because of Lawrence v. Texas. The 9th Circuit held that if traditional rational basis had been used in Lawrence, the Texas Homosexual Conduct Law would have survived judicial review, so something more demanding must have been in play. Since the military policy challenged by Witt placed a burden on private consensual adult homosexual activity, said the court, it could be challenged under due process and the burden would be placed on the government to show important policy justifications for maintaining the policy in the case of Witt. (I.e., as applied. The court did not treat this as a facial challenge, stating that the government’s burden was to show, in effect, that discharging Witt from her position would significantly advance an important government policy.)

  3. So what is really important about this decision is the judge’s contention that prior 9th Circuit equal protection cases that derive their reasoning from High Tech Gays v. D.I.S.C.O. should no longer be followed or treated as binding precedent, because High Tech Gays was premised on Bowers v. Hardwick, and Bowers v. Hardwick was not only overruled in Lawrence, but the Lawrence majority also said that it was wrong “when it was decided.” This means that High Tech Gays, to the extent it relies on Bowers for its reasoning, was also wrong when it was decided and is implicitly overruled by Lawrence, leaving open the question of how equal protection analysis should proceed in the 9th Circuit on a sexual orientation discrimination claim.

  4. Yes, it’s true that the Witt panel, post-Lawrence, held that High Tech Gay is still circuit precedent. This opinion says they are wrong. If they still want to cling to High Tech Gays as circuit precedent in light of the overruling of Lawrence, then they can reverse this one on appeal. BLAG is certainly appealing it.

  5. A district court, or even a Ninth Circuit appellate panel, should not be in a position to tell the Ninth Circuit that they were wrong. There is good reason for this vertical restraint. It ensures that litigants can rely on issues of settled law except in cases, such as Supreme Court writs of certiorari and en banc appellate hearings, where the reviewing court exercises discretion to hear the case. A district court defying a higher court disturbs me much more than the result of the ruling itself.

  6. If you read the judge’s ruling, you see that he cites 9th Circuit authority holding that a district court can treat a prior 9th Circuit ruling as non-binding if the basis for it has been substantially undermined by subsequent developments. In this case, the district judge points out that High Tech Gays has been substantially undermined by Romer v. Evans and Lawrence v. Texas, and also notes the Justice Department’s position that sexual orientation discrimination claims merit heightened scrutiny. If he’s wrong on that, the 9th Circuit will reverse him. That’s why we have appellate courts.

  7. In the few years since the panel decision in Witt, it has become clear that a new consensus is forming in the federal district courts, stemming from the application of Romer and Lawrence, that sexual orientation discrimination claims should be subjected to heightened scrutiny. Judges are taking more seriously the part of Justice Kennedy’s sentence overruling Bowers v. Hardwick where he says that the decision was wrong when it was made. Therefore, subsequent court of appeals decisions that relied upon Bowers as a key precedent must be rethought.

  8. The DOJ brief filed March 26 with the 9th Circuit, asking for immediate en banc review, explains in great detail. Not only has Lawrence’s overruling of Bowers eliminated one of the main precedents upon which the 9th Circuit relied in High Tech Gays, but the Circuit itself has rejected in other opinions several other premises underlying High Tech Gays, most notably on the immutability point, as to which the 9th Circuit changed direction in a later case. I’ll be blogging shortly about the DOJ brief and motion for immediate en banc review in Golinksi.

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