Yesterday, July 31, Judge Vanessa Bryant, a George W. Bush appointee to the District Court of Connecticut, struck down Section 3 of the Defense of Marriage Act as unconstitutional in Pedersen v. Office of Personnel Management, a case brought by Gay and Lesbian Advocates and Defenders (GLAD) in November 2010. In her ruling Judge Bryant granted the plaintiffs' requests for summary judgment and denied a request by the House of Representatives' Bipartisan Legal Advisory Group (BLAG) to dismiss the suit, writing in her conclusion:
Having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision [DOMA]. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.
The Pedersen case, which was filed in 2010, had been fully briefed and awaiting a decision since October of last year. In late June BLAG, which is defending the law on behalf of House Republicans, asked the court for a stay of all proceedings while another DOMA case, Windsor v. USA, was pending appeal in the Second Circuit. Judge Bryant rejected the stay, concluding that a stay issued so many months after the case was fully briefed and ready for a decision on the merits would likely harm the plaintiffs.
Judge Bryant's decision yesterday is an incredibly detailed, powerfully argued takedown of BLAG's arguments in favor of upholding DOMA as constitutional. She begins by noting the simple fact that the "impact of DOMA's definition of marriage is vast" and briefly touches upon the significant facts of the Pedersen case, whose lead plaintiff, Joanne Pedersen, worked for the Department of the Navy in a civilian position for 30 years. Her wife, Ann, has chronic severe medical conditions that Pedersen is unable to cover, simply because she is married to a woman and denied spousal benefits:
Joanne worries about Ann's chronic medical conditions -- hypersensitivity pneumonitis and asthmatic bronchitis -- which cause her breathing difficulties and severe fatigue. In 2008, a flare-up caused Ann, 60, to miss four months of work with recurrent bouts of pneumonia; she was out for about three weeks in the first half of 2009. After she recovered, she worked from home for two months.
As Judge Bryant writes toward the beginning of her opinion:
[T]he pertinent facts [in the Pedersen case] are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status.
The most significant and unique part of Judge Bryant's DOMA decision concerns the issue of the proper level of scrutiny with which the courts should consider laws like DOMA that affect gays and lesbians. BLAG argues that DOMA should be considered under rational basis scrutiny, the lowest and most deferential level, which laws can pass as long as they have some rational relationship to any government interest. But the plaintiffs in the Pedersen trial, like the U.S. Department of Justice, argue that the proper level of scrutiny is the more searching heightened scrutiny, which is reserved for specific classes of individuals. To pass heightened scrutiny, laws must be substantially related to a specific government interest, not any hypothetical rational one.
In several of the other appellate circuits in which DOMA has been struck down, there are specific court decisions at the circuit court level holding that laws against gays should be considered under rational basis. Because of these precedents, lower district courts in those circuits are bound to follow those rulings. But the Second Circuit has no such precedent, so Judge Bryant notes that it falls to her to determine the proper level of scrutiny from the ground up, because, as she points out astutely, "the jurisprudence of the appropriate classification is inchoate."
Significantly, many of the previous precedents arguing for a rational basis approach are based on a 1986 court case called Bowers v. Hardwick, which upheld sodomy laws in the United States as constitutional. That decision was explicitly overturned by the Supreme Court in the 2003 case of Lawrence v. Texas, so Bryant argues that precedents based on Bowers should be considered effectively defunct. While noting that past Supreme Court decisions have argued that courts should be "reluctant to establish new suspect classes," Judge Bryant makes a powerful case for why district courts must reconsider the facts on the ground in the absence of clear controlling Supreme Court precedent, arguing that taking a flexible approach toward Equal Protection law:
...does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court's duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect of quasi-suspect class.
Judge Bryant devotes over 40 pages of her opinion to a thoroughly detailed and fact-based argument that heightened scrutiny is the proper standard of review, taking down BLAG's arguments for rational basis review as she goes. In doing so, she looks at the four criteria the courts have established as meriting heightened scrutiny: 1) a history of discrimination ("the evidence in the record ... demonstrates that homosexual have suffered a long history of invidious discrimination"; 2) ability to contribute to society ("homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities"); 3) immutability ("sexual orientation should be considered a defining characteristic fundamental to one's identity much like race, ethnicity or gender"); and 4) political powerlessness ("despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is 'unlikely to be ... rectified by legislative means'").
Yet even in light of all of these arguments, which Judge Bryant says plainly demonstrate that "statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny," in the end, Bryant bases her official equal protection claim on rational basis, making the case that DOMA is so constitutionally impermissible that it does not even pass that lower standard of review. She eviscerates BLAG's arguments in defense of the statute, arguing that it does not promote heterosexual marriage, does nothing to ensure that children have two parents of the opposite sex, has no bearing on traditional notions of morality (as Bryant notes, "there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage"), undermines federalism by sabotaging states' attempts at democratic self-governance, and explicitly goes against any purported policy of incrementalism.
Judge Bryant's opinion is yet another body blow to DOMA, making the case that gays and lesbians should be subject to heightened scrutiny while simultaneously arguing that DOMA is so repugnant to the Constitution that it fails the most deferential standard of review. Incredibly, though, Judge Bryant goes one step further, in a remarkable footnote on page 75 of her opinion, addressing the matter of the fundamental right to marry, which is not explicitly at issue in the Pedersen case:
The Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. ... [T]he Supreme Court's recognition in Lawrence that the "right of homosexual adults to engage in intimate, consensual conduct" is also essential part [sic] of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. Although not the subject of this Court's opinion nor the Parties' briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation.
In plain, non-legal speak, Judge Bryant is making the case here for a fundamental right to marry for all Americans, regardless of their sexual orientation, due to the heightened scrutiny review gays and lesbians deserve -- an argument remarkably similar to that made in the Prop 8 case. That specific question was not presented in Pedersen, but as Bryant makes clear, the fundamental legal principles behind the two arguments are the same.
With Judge Bryant's powerful ruling, we now have yet another district court that has ruled DOMA unconstitutional. The Pedersen case will likely be appealed to the Second Circuit, where it could be consolidated with the Windsor v. USA case, whose plaintiff has requested that the court allow for an expedited schedule. In all likelihood, there may very well be a brief filed by the plaintiffs seeking to skip the appellate court review and go straight to the Supreme Court, as has been requested in two other DOMA cases (Golinski and Windsor). One DOMA case, Massachusetts, is already at the Supreme Court level. Once again, DOMA has been shown to be hanging by a thread. Today, another court has upheld the great American tradition of equal protection under the law.
This piece first appeared at Prop8TrialTracker.com.