A Decision Worth Waiting For

Mary Bonauto, the lead lawyer in our DOMA litigation, summed up Tuesday’s victorious decision in Pedersen v. Office of Personnel Management best during our post-decision tele-press conference. “I have to say,” she told reporters, “it was worth the wait on this one.”

Worth the wait, indeed. Though we’ve been anxiously awaiting a ruling in Pedersen, the second challenge to DOMA Section 3 that we filed in 2010, for about five months now, we could not have hoped for a better outcome. “The decision today from Judge Vanessa Bryant, I have to tell you, is outstanding,” said Mary. First, she noted, it is outstanding for the way Judge Bryant asserted that classifications based on sexual orientation should receive heightened scrutiny (which effectively means that those who support DOMA have a higher burden to prove the law isn’t discriminatory). Second, Mary praised Judge Bryant’s decision for being an extremely detailed analysis of why arguments made by the Bipartisan Legal Advisory Group (BLAG), the congressional leadership body that is defending DOMA in court, don’t pass legal muster. Judge Bryant pretty much eviscerates every anti-LGBT talking point, from the old “gays are bad parents” standby to the more recent “gays are so politically powerful they don’t need protections from the court.”

But for those of you who perhaps don’t have time to read all 103 pages of Judge Bryant’s takedown of DOMA – although I highly recommend you do – we’ve pulled out some choice quotes that will give you a sense of just how powerful her ruling was. Maybe they’ll make you want to read the whole thing, or maybe it’ll give you just enough information to impress people over cocktails this weekend (because we know you love to talk about DOMA all the time).

Highlights from Pedersen Decision 7/31

•  “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” (35)
•   “Broad-based repressive discrimination [of gay people] has existed at all levels of government.” (41)
•   “In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination.” (43)
•  “Gay men and lesbians are legally discriminated against in a variety of ways.” (64)
•  “The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.” (68)
•   “Even considering that President Obama has nominated four openly-gay judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary.” (69)
• “Having considered all four factors, this Court finds 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.” However, the court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of scrutiny.” (76)
•   “In this Court’s opinion, homosexuals warrant judicial recognition as a suspect classification.” (76)
•   “The Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging extra-marital procreation.” (82)
•    “Section 3 of DOMA is inimical to its stated purpose of protecting children.” (85)
•    “DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections.” (86)
•   “It is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared.” (87)
•   “Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples.” (87-88)
•     “Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children.” (90)
• “Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage.” (93)
•   “DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally.” (99)
•   “Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marriage benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits.” (103)
• “A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis.” (103)