William Duncan's Legal Analysis of Latest DOMA Challenge


Legal expert and director of Marriage Law Foundation William Duncan contributed this reaction to the recent DOMA case in California, presided over by Judge White:

Apparently it’s getting hard for federal judges in California to show their faces at the professional conventions unless they've struck down the Defense of Marriage Act or at least some marriage law. A judge in the Northern District and twenty of the Central District's bankruptcy judges have all said DOMA is unconstitutional. Not to mention what happened to Proposition 8. Last Wednesday, another San Francisco judge joined the crowd [PDF] holding DOMA unconstitutional in a case where a same-sex couple was trying to get federal employee benefits.

The popularity of this stance is inversely proportional to the strength of its legal reasoning. Wednesday's decision says DOMA creates a sexual orientation classification requiring "heightened scrutiny" (a category the U.S. Supreme Court created for laws that discriminate based on sex). For those interested, the "Heightened Scrutiny Clause" is next to the "Right to Government Funded Healthcare Clause" in the Constitution. Of course, all but one of the federal circuits and the U.S. Supreme Court have used "rational basis" rather than heightened scrutiny for sexual orientation classifications, but peer pressure is strong and in this case appears to have trumped precedent and normal constitutional analysis.