Judge Stephen Reinhardt of the Ninth Circuit in an order Wednesday seems to have declared the half of DOMA that declares that a same-sex marriage cannot be a marriage under federal law or for purposes of granting federal benefits unconstitutional, a violation of the equal protection component of the due process guarantee of the Fifth Amendment of the U.S. Constitution. http://www.ca9.uscourts.gov/....
I T had a diary on this order yesterday, http://www.dailykos.com/..., but I don't think it made it clear enough what the sweeping implications of this order are.
Read I T's diary for the background of the order (or an article like this one in the L.A. Times, Judge orders compensation for gay couple who were denied healthcare, other benefits), but I here point out two passages from Reinhardt's order that seem to me to declare that half of DOMA is unconstitutional.
First, there is this footnote 5 on page 10 of the order:
I should note that marriage is a status traditionally established and regulated by state law. It is also a fundamental right. Loving v. Virginia, 388 U.S. 1, 12 (1967). Whether a state may deny such status to same-sex couples is beyond the scope of this decision. Here, I need determine only whether same-sex spouses who have been legally married under the laws of the relevant state may, because of the sex or sexual orientation of the couple, be denied federal benefits that are afforded to other spouses legally married under such laws.
More significantly, there is this conclusion to Part I of the order on Page 16:
In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouse's sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional.
That's about as flat a declaration of the unconstitutionality of that part of DOMA as one can expect to see come from a court. (Note that it places no reliance on the fact that the employee in question was an employee of a federal court, as opposed to of the federal government in general.)
I don't know how much precedential force Judge Reinhardt's decision will have within the jurisdiction of the Ninth Circuit, but perhaps other people who do know about this can weigh in.