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DOMA Down, More to Go

Updated on August 18, 2012

February 22, 2012


"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."

Today's court decision finding DOMA to be unconstitutional is a thing of beauty. The case involves a federal employee, Ms. Golinski, whose partner was denied insurance benefits by her federal employer. The justification for denying these benefits was the Defense of Marriage Act (DOMA), which defines marriage as being between a man and a woman.

The first thing the Court examined was whether gay men and lesbians as a class should be subject to heightened scrutiny—a legal designation which means that they should be afforded heightened protections. To qualify for this status the Court examined several criteria: (1) a history of invidious discrimination; (2) ability to contribute to society; (3) whether the characteristics of the class are immutable; and (4) the political power of the class.

While any one of the factors alone is sufficient to grant the class heightened scrutiny, the Court found that the class of gay men and lesbians met all of the factors.

“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination...Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society...The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it...The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power...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.” (p. 18-24)

Heightened Scrutiny

The heightened scrutiny determination is important because, under it, the proponents of DOMA must establish that the classification created by the rule are “at a minimum...'substantially related to an important governmental objective.' Clark, 486 U.S. At 461" (p. 24).

In enacting DOMA Congress offered four justifications: (1)Responsible procreation and child-rearing; (2) nurturing the institution of traditional, opposite-sex marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources.

Responsible Procreation

In defense of same-sex parents, Ms. Golinski, provided evidence from Professor Michael Lamb demonstrating that same-sex parents are equally capable and effective at raising children as are opposite-sex parents. The opposition in challenge to Professor Lamb's conclusions argued that the studies he used had a number of flaws, but the Court dismissed each of them, concluding that “these criticisms of the studies relied upon by Professor Lamb do not alter their validity" (p. 27).

The opposition also cited some of their own sources to counter Professor Lamb's claim. One of which was an article that appeared on To which, the Court had the following to say:

“This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular online magazine without peer review” (p. 27).

If only, all such junk evidence could be so easily wiped off of the table.

The Court goes on to say that even if Congress' interest is in responsible procreation and child-rearing, DOMA does nothing to advance that interest and in actuality harms that interest by removing same-sex parents from having the equal protection of the law.

"The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them ‘ "the immeasurable advantages that flow from the assurance of a stable family structure," when afforded equal recognition under federal law.' Gill, 699 F. Supp. 2d at 389 (quoting Goodridge v. Department of Public Health, 440 Mass. 309, 335 (2003))" (p. 28).


DOMA defenders argue that "the institution of opposite-sex marriage is deeply rooted in American law, embedded in history and tradition and has been defined by both by Black's Law Dictionary and the Bible" (p. 37). The Court completely dismisses this argument:

Tradition alone, however, cannot form an adequate justification for a law. [T]he argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification (29 & 37).


The Court entirely rejects the notion of basing legislation upon asserting a sense of traditional morality. "Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny...The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation" (p. 30).

Preserving scarce resources

The Court equally rejects this notion, saying that "there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc." (p. 31). Furthermore, even if it were a concern, that would not "justify barring some arbitrarily chosen group from a government program" (p. 31).

"...the Court...cannot conceive of any...interests that DOMA might further

Hypothetical Defenses

After rejecting the interests that were claimed to be attained by DOMA, the Court than proceeds to hypothesize other possible interests that had not been brought up. The Court mentions three such possible interests: (1) Congressional caution in defining a legislative term and maintaining the status quo; (2) Congressional caution in area of social divisiveness; and (3) consistency. The Court equally rejects all of these hypothetical interests and concludes by saying that "neither the law nor the record can sustain any of the interests suggested, [and] the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further" (p. 42).


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    • Kathleen Cochran profile image

      Kathleen Cochran 5 years ago from Atlanta, Georgia

      When will well-meaning religious people (of which I like to think I am one) understand that the laws of our country are meant to protect everyone and have nothing to do with their religious beliefs?

      Religion. State. Two entities.

      And it's great to keep saying God intends marriage to be between A man and A woman, but in the Bible multiple wives were quite common, if not the norm. If we want to base our laws on our religion, do we want to go back to that?

    • junkseller profile image

      junkseller 5 years ago from Michigan


      Discrimination isn't illegal, it just requires a State interest. So, for instance, there are laws which prevent sex offenders from living near schools. Though discriminatory, the State has an overriding interest in protecting children.

      Similarly, their is no danger of marriage to animals or children, because the State has an interest in protecting them which would trump the desire to marry them.

      I think it is important that people are free to make their own moral decisions. My only real objections come when people want to make moral decisions for others. Regarding a gay person teaching children, I would make a different decision than you, I don't want to make that decision for you anymore than you seem to want to make it for others, so despite the difference, I think you and I would get along just fine. That's the way I think it should be.

      Thanks for the comments. I appreciate the perspective.

    • Rodric29 profile image

      Rodric Johnson 5 years ago from Phoenix, Arizona

      Same-gender marriage is not Biblical and does not fit in the plan God has revealed for mankind. Now that our country has elected to remove God from the matter, there is no reason to deny same-gender marriage.

      It is a pleasure based relationship--more so than normal relationships. I also know that the bonds formed in these homosexual relationships are intimate and poignant.

      I don't agree with it on religious grounds. It makes it harder to teach people about Christ when their parents are the same gender and the Bible is foreign to them. Future missionary work is effected.

      People will be more different than similar culturally. It never starts out with a lack of civility but it does end that way. Some pervert is going to push the law to include animals and children.

      The natural use for a man is with a woman. Because humans are not lower animals we can decide to change that based on our feelings. Most people do not choose to be gay. I know I wouldn't. I like having a family without having to include the government or a lab, which is the result for the majority of humanity.

      I will say this, that discrimination is not Christian. What I mean by that is treating people rudely. I do not want a gay teacher teaching my children. I do not want a gay president. I do not want anyone that does not share my values of family and morals teaching my family anything gay or straight. I discriminate that way.

      It is never okay to hurt, disrespect or persecute people based on sexuality or other reason. The laws are decided by the people, but judges are usurping power.

      As much as I oppose same gender marriage, I oppose rude and malicious behavior more. Just because we do no agree does not mean we have to be disagreeable.

      I consider same gender relationships no more evil than people in un-wedded normal relationships. Both are not adhering to the plan set forth by God. Yes I consider all relationships outside of normal marriage perverted, not because the people are freaks, but perverted as in changed to mean something else.

      Marriage not means coverage from company healthcare and state benefits. It used to mean a covenant between God and a man and a woman, the tribe a man and a woman, the earth a man and a woman, the fertility god a man and a woman, Allah a man and a woman and a woman and a woman, God a man and multiple women, nations a man and a woman--the key is it was a social contract to unite communities and systems.

      Now it is just a tax right-off. It that all that marriage is, then we really have no reason to deny same gender marriage. I cannot think of a valid one reason other than my religious beliefs, which is good enough for me.

      Voted up because of the engaging subject matter and the concise information about recent court decisions. Also voted awesome because the writer maintains a high standard of interaction with respondents.

    • junkseller profile image

      junkseller 6 years ago from Michigan

      @id radmasters: did you read any of what I said? The issue isn't just of discrimination but also that it is discrimination WITHOUT advancing a state interest. Protecting people from child molesters and serial killers advances a state interest (protecting its citizens from harm) so can be considered legitimate discrimination.

      As to same-sex marriage, the opponents could not demonstrate any state interest that would be affected, hence it is unconstitutional to discriminate in this instance.

      The Courts do not consider how people feel about same-sex marriage. They only consider the legal merits. According to them, there are many traditional aspects of marriage (commitment and love, shared lives, foundations of families, stable households, etc.) that are just as true for same-sex couples as they are for others. Additionally procreation is NOT a requirement for marriage. For instance, some opposite sex couples do not or can not have sex, some do not have children, and some are incapable of having children, yet marriage has never been denied to them. Therefore, it is not a logical or historical test that should be applied to the legitimacy of same-sex marriage.

    • Josak profile image

      Josak 6 years ago from variable

      I don't see how whether someone elses marriage "works" ornot is any of your bussiness or the goverments bussiness I see plenty of marriages ocurring that won't work out (indeed most marriages end in divorce) but I don't see the government stepping in to stop them and I would be outraged if they did. If a gay marriage will work as a cohesive unti or whatver is not my concern, many gay marriages do as a matter of fact, (in countries where it is legalised) but I certainly don't think it's anyone elses job to tell anyone who they can and can't marry, that is facist.

    • ib radmasters profile image

      ib radmasters 6 years ago from Southern California

      We also discriminate against child molesters, serial killers and bigamists.

      Same sex marriage is not the answer for equality. And comparing same sex marriage to heterosexual marriage is like trying to compare lettuce with apples.Same sex is like marrying two electrical cords with like plugs, it just doesn't work right. It is still just two electrical cords that don't function. With two different gender plugs two electrical cords connect as one cord. And they function as a working unit.

    • Josak profile image

      Josak 6 years ago from variable

      A slow crawling victory perhaps but a victory none the less, I'll take it!

    • livelonger profile image

      Jason Menayan 6 years ago from San Francisco

      Josak: I agree. My parents are a good counterexample. So is my rabbi. But with every new generation that votes, and with the loss of an older generation at the same time, the proportion of those who want equality grows. :)

    • Josak profile image

      Josak 6 years ago from variable

      Sadly I think you are correct int he majority of cases livelonger thankfully its not the case with every older person and I meet many wonderfull people who are also willing to grant others equality.

    • livelonger profile image

      Jason Menayan 6 years ago from San Francisco

      I was heartened by the ruling. I know one of the plaintiffs, and she and her wife are decent people who are raising a child together. I can't pretend to understand all the legalities in the matter, and what path this will take towards the eventual abrogation of DOMA, but I'm glad that this is one step in the right direction.

      As for the bigots calling gay people perverts and disgusting, I see that the vast majority are older and I remember this quote from Max Planck: "A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it."

    • Josak profile image

      Josak 6 years ago from variable

      So AR you seriously don't understand the difference between two people doing what they want to do together as consenting adults and the rape of a child...

      No I wouldn't let my kid go with the molester because he would molest my kid and violate his right to decide what to do with his own body, gays don't do that so its apples and oranges.

    • junkseller profile image

      junkseller 6 years ago from Michigan

      @American Romance: You have openly disparaged homosexuals (“ashamed to show themselves for the degraded pervs they are!”), which is by definition bigotry. Calling you out for it is not name-calling, it is simply a statement of fact. Responding as you did with "freaks" and "loser[s]" IS however name-calling.

      No one responded to your question because it is as ridiculous as asking if someone would willingly punch themselves in the face. Of course no one will let their child in a room with a child molester. Many of us would and do, however, willingly let our children in the room with homosexuals, because we know that their sexual orientation has absolutely no relationship to the moral content of their character.

      For as much as you claim to like America, you often seem to know little about it. You do realize our system, based upon checks and balances, has THREE legs, don't you? The judicial system is one of them. Its job isn't to decide what people like or not. Its job is simply to evaluate the legal merits of the cases that are brought in front of it.

      You're entirely free to state your opinion, but I would suggest that if you really disagree with the decisions of the courts, that you respond to them based upon their legal analysis, rather than based upon your feelings or the sexual orientation of the judges.

      As to the gay judge 'over-ruling the people', I guess you are referring to Walker's decision invalidating Prop 8. His decision, however, has been affirmed by the Ninth Court of Appeals.

      This case I am referring to, however, was decided by non-gay Judge Jeffrey White, a Bush appointee who as far as I know is not known for being partisan in either direction.

      There is something that all of these court cases have in common. All of them essentially find that prohibiting gay marriage violates the Due Process and Equal Protection clauses of the constitution. These rights are absolute, not dictated by majority will.

    • American Romance profile image

      American Romance 6 years ago from America

      hahaah, all you freaks did nothing but name call! Typical loser retort! Im the bigot but none of you said you would allow the molestor to take your child home! steveso said molestors were married men? So what? they are still violent disturbed individuals! Even as a Christian who opposed gays I have no problem tolerating them and their ways. I do however have a problem allowing them equal status under the law! ESPECIALLY since Americans (see CA) have voted their laws down and have had their rights infringed upon by single judges! Last I looked this is America where democracy rules no matter how any of us liked it! I hate Obama health care but until a court overturns it I am stuck with it! A court didn't overturn the voters in CA, a single judge did!.......Oh he was gay by the way!...........hypocrites!

    • junkseller profile image

      junkseller 6 years ago from Michigan

      @American Romance Gays stayed in the closet (and still do) because of people like you, not because they were ashamed of what they are. The only harm caused by homosexuals is the harm you yourself imagine occurs and the harm that arises from the invidious discrimination unleashed by intolerant individuals such as yourself. In either case, harm is eliminated by you; not by them. We all have the chance to wake up tomorrow and be a better person than we were today. Does your heart honestly say there is no work to do today?

    • Josak profile image

      Josak 6 years ago from variable

      Just ignore the AR, he is just bitter because he knows he has lost, soon gays will have full rights and equal treatment under the law and he will be the crazy guy we pass on our way to work holding a cardbooard sign and telling us that we are all going to hell as gay enablers :P.

      A man who lacks the intellectual capability to differentiate between two consensual adults doing what makes them feel happy and the rape of a child, a man with the nerve to say he believes in the foundations of America and then try to restrain someones freedom, the basic tenet of this country definitely a useless nut.

    • steveso profile image

      Steve 6 years ago from Brockport, NY

      A typical bigoted statement, Did you know that according to FBI statistics the average child molester is a heterosexual married male? Probably not, because you most likely read only Christian approved websites, thus not having to open your mind.

    • American Romance profile image

      American Romance 6 years ago from America

      soooo have child molestors also suffered at the hand of discrimination? Just a few years ago gays stayed in the closet and were ashamed to show themselves for the degraded pervs they are! I suppose by your thinking in just a few years you will be writing that it should be OK for the neighbor to invite your 6 year old in for cookies????

    • steveso profile image

      Steve 6 years ago from Brockport, NY

      Finally the court used common sense in making this decision. Hopefully other court decisions on the way to declaring DOMA unconstitutional will use logic and common sense arguments instead of bigoted and intolerant arguments.

    • Josak profile image

      Josak 6 years ago from variable

      The court is spot on it's great to see logic and tolerance in the courts in the face of prejudice.