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GOP Appeals After Another Federal Judge Finds DOMA Unconstitutional

By Stephanie Rabiner, Esq. on February 27, 2012 4:05 AM

Three GOP congressional leaders are appealing a federal judge's ruling that declared a law prohibiting the government from recognizing same-sex marriages to be unconstitutional, according to court papers filed late Friday.

Private lawyers for the Bipartisan Legal Advisory Group notified the federal court in San Francisco that they are asking the 9th U.S. Circuit Court of Appeals to review the decision issued by according to Judge Jeffrey White.

The ruling came in response to a suit filed by Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. She sued after the U.S. Office of Personnel Management refused to provide health coverage for her legal wife.

The government cited Section 3 of the law, which defines spouse as a member of the opposite sex. The wording prevents the federal government from recognizing same-sex marriage. Golinski argued DOMA is unconstitutional because it violates the 5th Amendment's guarantee of equal protection under the law. Judge White agreed.

"Legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny," he wrote. He then found DOMA to have no rational basis.

When debating the law in 1996, Congress called homosexuality "immoral," "depraved," "unnatural," and "based on perversion." DOMA was heralded as a way to encourage "responsible procreation and child-rearing" and to defend "traditional, heterosexual marriage" and "traditional notions of morality."

The law does not encourage homosexuals to marry opposite-sex partners, according to Judge White. He also believes the "denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them" the advantages provided by the law.

With regards to Congress' moral reasoning, he wrote that "the imposition of subjective moral beliefs of a majority on a minority cannot provide a justification" for a discriminatory law.

In the court's eyes, DOMA is unconstitutional because it does not promote any of the government's proffered justifications. Instead, it "exhibits a 'bare desire to harm' same-sex couples."

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