by Samantha Berkovits

In the first decision on DOMA from the federal bench since President Obama’s announcement supporting gay marriage, a U.S. District Judge for the Northern District of California has ruled that Section 3 of the Defense of arriage Act, DOMA, is unconstitutional. Dragovich v. U.S. Department of the Treasury focused on how DOMA unconstitutionally limits same-sex couple and domestic partner participation in aspects of the California Public Employees Retirement System, or CalPERS.

U.S. District Court Judge Claudia Wilken ruled that the definition of spouse in DOMA "violates the equal protection rights of Plaintiff same-sex spouses," as does a subsection of the Internal Revenue Code. Wilken concludes that CalPERS should not use DOMA or the IRS provision to limit participation for same-sex couples, nor should the plan cease receiving beneficial tax credits from the federal government.

Her ruling “set out the reasons why the legal arguments for a federal statute prohibiting same-sex marriage have become obsolete” and referenced the decision in Lawrence v. Texas, which stated that “social disapproval of homosexuality on the basis of asserted tradition and mores is no longer accepted as sufficient justification for laws burdening gay men and lesbians.” She also cited the more recent Ninth Circuit ruling in Perry v. Brown that “tradition alone is not a justification for taking away a right that had already been granted, even though that grant was in derogation of tradition.”

Wilken is not the first federal judge to find DOMA unconstitutional. She follows Judge Joseph Tauro in Massachusetts, and Judge Jeffrey S. White, also in California. The federal government ceased defending DOMA last year, but the Republican-led Bipartisan Legal Advisory Group, defended the law in Dragovich. The same group is appealing Judge White’s decision to the Ninth Circuit, which will review the case en banc. The Massachusetts decision is also on appeal.