On Wednesday, a week after a federal court rejected California's Proposition 8, which bans same-sex marriage, another federal court issued a landmark ruling in favor of marriage equality. This time the law declared unconstitutional was the federal Defense of Marriage Act, or DOMA, which prohibits any federal agency from recognizing marriages between couples of the same-sex. Unlike the Proposition 8 case, in which the opinion was written by arch-liberal judge Stephen Reinhardt, Wednesday's DOMA ruling was issued by a conservative judge appointed by George W. Bush, Jeffrey White.
Surprisingly, where the liberal Reinhardt's opinion was narrow, the conservative White's opinion in the DOMA case was broad and far reaching.
Some supporters of marriage equality criticized Reinhardt's Proposition 8 opinion last week for being too timid. In contrast to the earlier decision of Judge Vaughn Walker in the Proposition 8 case, which held that marriage was a fundamental right for all Americans regardless of sexual orientation, Reinhardt's opinion refused to make such an audacious declaration. Instead, Reinhardt explained that Proposition 8 was unconstitutional because of the unique circumstances of California, which first allowed gay people to marry and then took that right away. Even if accepted by the Supreme Court, Reinhardt's approach would not require the recognition of same-sex marriage nationwide.
White's opinion in Wednesday's ruling was assertive and bold, calling into question every law that discriminates against LGBT people. White held that such laws are subject to "heightened scrutiny" by the courts, which means that the laws will be struck down unless the government can show very good reasons, backed by strong evidence, for the disparate treatment.
The justifications for DOMA, however -- which included encouraging responsible procreation and child-rearing, nurturing traditional marriage, and preserving scarce government resources -- had little to no evidence to support them. He cited, for example, numerous studies proving that children are not harmed by being raised in a gay household and he found no credible evidence that allowing gays to marry hurts opposite-sex couples.
In requiring courts to apply heightened scrutiny to laws discriminating against gays and lesbians, White's opinion showed the profound influence of the Obama administration's announcement last year that it will not defend DOMA. (The current case was being defended by lawyers hired by Congress.) The administration stated that, in its view, heightened scrutiny was appropriate in cases of anti-gay discrimination -- a daring position at the time given the Supreme Court had never held that, despite several opportunities to do so. White cited the Obama administration's announcement as support for his own ruling.
When the Obama administration first announced that it wouldn't defend DOMA, I criticized that decision here. Although I still have concerns -- it could provide a precedent for, say, a future Santorum administration to refuse to defend Obama's healthcare reform law -- the game-changing impact of the Obama announcement can't be denied. Achieving equal citizenship for LGBT people, the great civil rights issue of our day, is well worth such risks. Turns out that Obama was right about DOMA and it was me who was wrong.
Whether White's ruling in the DOMA case will be upheld on appeal, no one knows. But his is the second federal court decision to declare DOMA unconstitutional, suggesting that the tide is turning quickly against anti-gay discrimination -- even among many conservatives. And for that, at least some of the credit goes to the brave decision of the Obama administration not to defend this statutory testament to anti-gay prejudice.