Don Davis

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

Filed By Don Davis | July 12, 2010 2:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: civil rights, Constitutional Law, DOMA, Gill v. OPM, LBGT, marriage equality, same-sex marriage

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional. In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM). I don't usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as "the Feds" from time to time), is not so happy at the moment. As with last time, there's a lot of ground to cover, and the sooner we get to it, the better.
In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of "spouse" was forcing the State to illegally discriminate against its own citizens. Today's Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses. They all seek to overturn Section 3 of DOMA; the definitions of "marriage" and "spouse" are the issue in question. The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the "effect" of certain legal instruments issued by the various states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the "effect" of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied. Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned. The final group of plaintiffs want to be recognized as married couples for federal income tax purposes. The Court denied standing to Representative Studd's spouse; this because other legal action must be concluded before this Court could act on his claims. The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary. He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar. Now we need to address how courts resolve questions related to equal protection. This, from the opinion:
To say that all citizens are entitled to equal protection of the laws is "essentially a direction [to the government] that all persons similarly situated should be treated alike." But Courts remain cognizant of the fact that "the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry-if it bears a rational relationship to a legitimate government interest.
The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the "easier" of the two standards:
...a challenged law can only survive this constitutional inquiry if it is "narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]... ...As such, a law must fail rational basis review where the "purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...
Attorneys for the Defendant assert that Congress wanted to achieve the following:
...(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.
The Court the notes that those same attorneys have now "disavowed" Congress' stated intents in defending against these lawsuits...but that doesn't matter, because, when passing legislation:
...the government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.
As a result, the Court will examine those proffered motivations. The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.
But even if Congress believed at the time of DOMA's passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.
The Judge goes on to point out that it's not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry. Is "traditional" marriage nurtured or protected by banning same-sex marriage? The Court notes that telling same-sex couples they can't "Federally" marry probably won't make them want to marry members of a different sex...especially if they're already married, as all these Plaintiffs are. The Court also can't figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit... ...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law...." (Emphasis in original)
With the Defendants already behind 4-0, they have presented to the Court new "rational bases" for the purposes of this litigation: They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an "incremental response". Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do. He provides numerous current examples from law and regulation:
...42 U.S.C. § 416(h)(1)(A)(i) (defining an "applicant" for purposes of Social Security survivor and death benefits as "the wife, husband, widow or widower" of an insured person "if the Courts of the State" of the deceased's domicile "would find such an applicant and such insured individual were validly married"); 20 C.F.R. § 404.345 (Social Security) ("If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.")...
Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:
The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, "none had become a topic of great debate in numerous states with such fluidity.
Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time. He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments. He assumes this was because Congress knew that absent an Amendment, they couldn't define marriage for the states.
...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.
The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs. On the other hand, the Feds do recognize any opposite-sex marriage, under any state's laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage. The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says they're married, and that's good enough for the Federal Government. The Feds argue for "consistency" in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments. A consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as "married - filing jointly". The marriage license is the administrative issue, and that's already been taken care of by the various states involved. The Plaintiffs argue that DOMA actually makes things less consistent and more complex. The Judge agrees.
In sum, this Court is soundly convinced, based on the foregoing analysis, that the government's proffered rationales, past and current, are without "footing in the realities of the subject addressed by [DOMA]." And "when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest," this Court finds that DOMA lacks a rational basis to support it... ...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
Well, I'll tell you what...this is pretty heady stuff right here. You very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has. He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli. He sees the Federal Government as having provided no rational basis for DOMA, twice. In fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed. To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn't mean the Constitution is on their side. All that means there is a lot of thinking going on in the Department of Justice around an appeals strategy. But we have done enough for today, so we'll leave that discussion for another time.

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Maggie? Brian? ARE YOU LISTENING?

If they were, we wouldn't have to go through this shit... :)

the big thing now is the appeals strategy.

the defendants are all federal agencies, which leaves the power to decide what to do in the hands of the administration.

i don't know the first circuit, so i'll leave the thinking to others better situated, but this is tricky: if you leave things as they are, and a challenge with a different result arises in another circuit, the case could end up with the supremes anyway...but it's also possible you could essentially keep losing lawsuits and not appealing, one district at a time, and achieve a better de facto result than you could in any circuit, save the 9th.