Bush Appointee Strikes Down DOMA, Citing Historic Discrimination Against Gays And Lesbians

Think Progress | by Zack Ford | July 31st, 2012

Judge Vanessa Bryant

Another court has overturned the anti-gay Defense of Marriage Act, ruling in Pedersen v. Office of Personnel Management that “no conceivable rational basis exists for the provision.” Judge Vanessa L. Bryant, a district judge in the Second Circuit appointed by President George W. Bush, therefore ruled that DOMA “violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.”

The suit was brought by same-sex couples living in Connecticut, Vermont, and New Hampshire who argued they were unfairly denied access to various programs available to other married couples. House Republicans, under the guise of the Bipartisan Legal Advisory Group (BLAG) and Speaker John Boehner’s (R-OH) leadership, intervened at taxpayer expense to defend the anti-gay statute. In her decision, Bryant took BLAG to task for attempting to rewrite the past by claiming that gays and lesbians have not been subject to discrimination throughout history:

The fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet. […]

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 thathomosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.

Multiple other rulings against the Defense of Marriage Act have already been appealed to the Supreme Court for review in the coming year. This latest rebuke of the law adds to the compelling case already before the Court that DOMA is nothing more than unnecessary, unconstitutional discrimination against same-sex couples.

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