Claudia Wilken, U.S. District Judge for Northern California, struck another blow against the Defense of Marriage Act (DOMA) on May 23. The case centered on benefits offered by CalPERS, the California Public Employees’ Retirement System. The system has refused to let gay spouses enroll in its federally approved insurance program on the grounds that they were excluded by DOMA. This practice is common in most states.
Judge Wilken ruled that the relevant provisions of DOMA violated the U.S. Constitution’s guarantee of equal treatment, writing that there was no proof the DOMA provision was “rationally related to a legitimate government interest.” She also struck down a U.S. Internal Revenue Service law to the extent that it bars domestic partners from enrolling in the long-term care insurance plan offered by CalPERS. She ordered CalPERS to begin allowing gay and lesbian spouses and partners to enroll in the plan.The full order (PDF) is available here.
This is the second ruling against DOMA’s constitutionality in recent months. U.S. District Judge Jeffrey White of San Francisco issued a similar ruling in February in a lawsuit filed by Karen Golinski, a federal appeals court staff attorney who wants to enroll her wife in the court’s employee health plan. An appeal of White’s decision by a Republican-led Congressional group is slated to be heard by the 9th U.S. Circuit Court of Appeals in San Francisco in September.
The group, known as the Bipartisan Legal Advisory Group, is made up of the five top leaders of the House of Representatives. It stepped into both the cases before White and Wilken after the Obama Administration said last year it will no longer defend DOMA. Reflecting current House composition, the group has three Republicans and two Democrats. Both decisions to intercede were made by a three-two partisan vote. Judge Wilken indicated that she will suspend her order if the Group refers her decision to the 9th Circuit as they are likely to do.
DOMA is at risk on several fronts. Besides the two California cases and the Obama decision not to defend, there are two bills in Congress to repeal the law. This Respect for Marriage Act has good support in the Democrat-controlled Senate but no traction in the Republican-led House. Another ruling against DOMA in Massachusetts is currently before a federal appeals court.
The recent attention on marriage equality has actually increased approval in polls. Strong statements from the NAACP and black leaders dramatically increased approval in the African American community. Even Republican strategists have begun admitting that some of the rationale for DOMA is deeply flawed. Even if Congress can’t agree to act, the days of this discriminatory law may be numbered.