Skip to main content

The U.S. District Court for Connecticut has struck down the so-called "Defense of Marriage Act" (here after DOMA) adding to the litany of federal courts finding the 1996 law to be unconstitutional. District Judge Vanessa L. Bryant, an appointee of that scion of radical liberalism George W. Bush, held that DOMA serves no rational basis and thus fails the very deferential rational basis test used to analyze Equal Protection claims against legislation that classify persons upon non suspect bases; however, the ruling found that rational basis is not the proper standard of review for classifications based on sexual orientation.

After a lengthy analysis of the Supreme Court's methodology, the court found "that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny." The court continued that it was, however, not necessary to judge the law by that standard in this case as "DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."

I'll try to add more to the diary as I continue reading. Its a good read and handles the subject well. It is available for download here. The case is Pederson vs OPM

The law is being defended by the Bi-Partisan Legal Advisory Group (BLAG), Speaker John Boehner's vehicle for funneling taxpayer dollars to the anti-gay equality movement. So far, it has simply wasted perhaps hundreds of thousands of dollars trying (and failing miserably) to defend the indefensible.

BLAG has argued that DOMA has a rational basis and that sexual orientation is not a suspect or quasi-suspect classification. The Connecticut court dismantled that notion quick convincingly. Whereas BLAG contends the precedent that sexual orientation is not suspect is "consistent, substantial and persuasive," the court instead found it "inchoate." Bryant, correctly in my opinion, found that neither Romer v Evans or Lawrence v Texas definitively determined the standard of review for sexual orientation classifications. In Romer, the law failed the lowest level, so considering a high standard of review was unnecessary (and it is a general rule of thumb with that Kennedy/O'Connor influenced high Court that if it isn't necessary to answer a particular question, you don't answer it). Lawrence v Texas on the other hand was decided via the Due Process Clause by the majority. O'Connor's concurring opinion did rely upon the Equal Protection Clause, but did not set a standard of review saying only that when a law targets a politically unpopular class for disfavored legal status, that a more searching standard than plain rational basis is appropriate. Other Appeals Courts cases on the standard of review are not helpful either since they mostly involve the military, which is given greater deference than the review of a law in a civilian context.

In examining the standard of review, the court looked at each of the four factors the Supreme Court has said they use in determining a classification's suspectness: a history of discrimination, ability to contribute to society, defining or immutable characteristics, and political powerlessness to effectuate change through the legislative process. In succession, the court found gays and lesbians to qualify in each of the factors, including the political powerlessness:

In sum, the record demonstrates that 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.” [...] As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.”  Although not necessary to trigger heightened scrutiny, this Court finds that gay men and lesbians lack meaningful political power sufficient to satisfy this factor of the suspectness inquiry.
Bryant then looked at the asserted rational bases put forth by BLAG and considered each in turn and found none of them persuasive: "In sum, 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. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."

Originally posted to craigkg on Tue Jul 31, 2012 at 11:58 AM PDT.

Also republished by Milk Men And Women, Invisible People, LGBT Kos Community, Angry Gays, and Kossacks for Marriage Equality.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site