In Gill v. Office of Personnel Management, the judge held that the act's divergent treatment of same-sex and heterosexual couples violates the equal protection principles implicit in the Fifth Amendment. The court asked whether Congress had a legitimate basis for treating same-sex couples differently. The unambiguous answer was "No."

How about procreation? No. Infertile persons are permitted to marry even though they cannot procreate. Child rearing? No. Studies show that children do just as well when raised by same-sex parents. Promoting traditional marriage? No. Heterosexual marriages will not be affected by allowing gay marriages. Conserving government resources? No. The Congressional Budget Office found that recognizing same-sex marriages would save money. We would have fewer children in state institutions, lower divorce rates and promiscuity, and increased wealth.

Congress' real aim, wrote Judge Joseph Tauro, was to "disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit." The judge bypassed the usual strict standard of judicial review that applies if a "fundamental" right is at issue. Instead, he applied the lowest standard, known as rational basis review, and concluded that "There's no need to get to higher scrutiny if it fails rational basis review."