As you undoubtedly know by now, the United States District Court for the District of Massachusetts issued two opinions last night finding that the so-called "Defense of Marriage Act" is unconstitutional.
Why two different opinions? The first one, Gill v. Office of Personnel Management, was by a federal employee looking to get benefits from her employer. She couldn't because of DOMA. She said DOMA violated the equal protection of the laws, a violation of the 5th Amendment to the US Constitution. (Interestingly, the 5th Amendment doesn't actually contain specific equal protection language, but the Supreme Court read it into the law a few decades ago.)
The second one, Commonwealth v. Health and Human Services, was by the State of Massachusetts, whose definition of marriage is supplanted by DOMA. The State said Congress has no power to define marriage. The Administration said it did under the "Spending Clause" (Congress has the power to pay debts). The State also said DOMA violated the Tenth Amendment to the U.S. Constitution (powers not granted to the national government nor prohibited to the states are reserved to the states or the people).
There's no question but that GLAD and its cooperating law firms have won a great victory -- a real first. Never before has a court ruled that DOMA is unconstitutional. That's something to celebrate. But, being a first, it's a one-battle victory, not the end of the war.
These decisions are limited in effect, and will very likely be appealed, where they could be changed or even reversed. The ruling would go up on appeal to the United States Court of Appeals for the First Circuit, and thence to the U.S. Supreme Court.
The effect of the decisions will probably be put on hold during the course of the appeal.
The decisions only affect section 3 of DOMA -- the federal benefits part. It does not require interstate recognition of marriage equality. People married in Massachusetts will still get no respect in Florida.
The decisions also only affect people in Massachusetts, though that could expand on appeal. The decisions are probably not retroactive, so that people who paid extra taxes or were denied federal benefits based on DOMA will probably not be able to get their money back.
What's the likelihood of a reversal on appeal? That's after the jump.
"What an amazing set of opinions," said Jack M. Balkin, a professor at Yale Law School, commenting in the New York Times this morning. "No chance they'll be held up on appeal."
Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government's longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group's case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.
"These two opinions are at war with themselves," he said.
The arguments concerning the 10th Amendment and the spending clause, if upheld, would "take down a wide swath of programs -- you can't even list the number of programs that would be affected," he said.
omg, is he right?
Well, let's first look at what Judge Tauro said in the case of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services.
Commonwealth v. U.S. Department of Health and Human Services
I must first comment that Judge Tauro seems to go to quite some lengths not to base his decision on the sole ground that DOMA violates the Equal Protection Clause (no state shall deny to any person the equal protection of the laws). Instead, he discusses the question of whether Congress has the constitutional authority in the first place to enact such legislation, and decides that the constitutional authority identified by the Administration doesn't exist -- because of the Equal Protection Clause.
Why dintcha just say so in the first place? (Well, there's probably a reason for that, which I'll discuss later.)
Judge Tauro reviewed the history of marriage, noting particularly that attempts to create a federal marriage definition over the past two centuries have failed. He also noted that the federal government has consistently accepted the various States' definitions of marriage, regardless of how inconsistent or even odious (as in the case of interracial marriage bans).
He analyzed three areas of differences in treatment of same-sex married couples in Massachusetts: veterans' cemetery benefits, Medicaid, and the health benefits tax.
First, he looked at the two Massachusetts cemeteries used for the burial of eligible military veterans, their spouses, and their children. The federal government provided millions of dollars for their construction, and contributes towards the cost of each burial, requiring Massachusetts to follow federal regulations that deny "spouse" status to Massachusetts same-sex marriages.
The federal government even said that, should Massachusetts decide to ignore this, and bury same-sex spouses in the cemetery, the federal government could ask for its millions back and stop contributing in the future.
He also looked at MassHealth, Massachusett's public assistance medical program for the needy, which receives money from the federal government. Same-sex couples, even though validly married under Massachusetts law, must be evaluated for program benefits as if single, which results in Massachusetts losing millions.
He also noted that Massachusetts, like all states, is required to contribute money to the federal government for Medicare, 1.45% on the taxable income of all employees in the state. Health insurance benefits given to an opposite-sex spouse are not considered taxable income. Massachusetts pays no tax to the U.S. on those benefits. But the federal government considers health insurance benefits to a married same-sex spouse to be additional income. Massachusetts has had to pay additional hundreds of thousands of dollars because of this.
The Basis of Federal Power To Define Marriage
Judge Tauro said the question before him was whether marital status determinations lie exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself.
This is a very important point. The way that the judges ask the questions is often determinative of how the questions get answered. A less sympathetic court might ask whether a state has the right to determine how the federal government divvies up federal benefits.
Here's what Judge Tauro said about the right of the federal government to get involved in defining marriage.
It is a fundamental principle underlying our federalist system of government that "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution." And, correspondingly, the Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The division between state and federal powers delineated by the Constitution is not merely "formalistic." Rather, the Tenth Amendment "leaves to the several States a residuary and inviolable sovereignty." This reflects a founding principle of governance in this country, that "[s]tates are not mere political subdivision of the United States," but rather sovereigns unto themselves.
in other words, the States have all the power, and the Feds can only act if there is a specific okay in the Constitution.
That's somewhat unintentionally funny, given how the federal government has found a way to take over or have a hand in almost every function of government over the past 200 years. But, on a formal level, it's true that the Federal Government can only act if it has a basis for that act in a power granted to it by the U.S. Constitution. The U.S. Supreme Court used to consider itself a guardian against abuse of this, but changes in the functioning of the modern world made the notion of a bunch of rural states ruling over a behemoth U.S. government into a quaint and unworkable idea. Now, most federal judges consider finding strained interpretations upholding federal power as part of their job description.
Personally, I'm happy with that arrangement, as it ended slavery, won World Wars I and II, mitigated the Great Depression and eradicated Jim Crow, but then again, I'm not in much of a position to change the arrangements either, should I be unhappy with it.
That makes Judge Tauro's decision all the more remarkable.
In one sense, Judge Tauro's decision is not remarkable, and that is the fact that the U.S. Constitution nowhere gives Congress the power to define marriage, or, indeed, get involved in any sort of family or domestic relations law, matters which have traditionally been within the powers of the States only. In fact, the U.S. Supreme Court has struck down laws that, however well intentioned, tried to tie violence against women and illegal firearms to Congress's power to regulate interstate commerce. They said that neither violence against women nor illegal firearms have any intrinsic connection to interstate commerce.
Of course, that same US Supreme Court gave the green light on interstate commerce power being tied to racial discrimination and illegal drugs. There is a reason why these are treated differently, but it escapes me at the moment.
As Justice Jackson famously said, "we are not final because we are infallible, but we are infallible only because we are final." And sometimes, we don't make any damn sense at all. (He didn't say that last part, but he should have.)
The Tenth Amendment And The Spending Clause
The Obama Administration said that the "Spending Clause" of the U.S. Constitution provides its power to define marriage. That clause reads as follows:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
In other words, Congress has the power to incur and pay debts, and it can spend its money however it pleases. If it wants to provide benefits only for redheads, it can do so, and it can define who's a redhead.
But that power is not unlimited, and the U.S. Supreme Court recognized that in a 1987 case that listed five requirements of "Spending Clause Power." Judge Tauro said DOMA violated one of those requirements:
the legislation must not be barred by other constitutional provisions.
Judge Tauro said this requirement was violated because the DOMA definition of marriage was barred by another constitutional provision, namely, the Equal Protection Clause (no state shall deny to any person the equal protection of the laws).
He didn't explain in the Commonwealth v. HHS decision, but referred back to his other decision yesterday, Gill v. OPM, to which I refer for my discussion below.
The Equal Protection Clause means there must be a reason for treating people differently. But since most legislation includes some people and excludes others, the courts allow a good amount of leeway on this. As long as there's some good reason for the classification, the courts aren't going to look too closely.
Except where the legislation gets jiggy with a fundamental constitutional right, like freedom of speech or the right to get married (straight marriage only, of course), or a classification that is considered suspect, like race or religion....or, maybe, sexual orientation(?). Then judges are supposed to use "strict scrutiny" to analyze the law with laser beams.
Government laws judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.
When judged under the regular standard, called "rational basis" scrutiny, laws are usually found to be perfectly fine and constitutional.
So you can imagine that the GLAD legal team wanted "strict scrutiny."
But Judge Tauro knocked down the idea that DOMA deserved strict scrutiny. He said he wouldn't use laser beams to analyze the law strictly. Instead, he'd look at sexual orientation like any regular old legal classification In a constitutional case. He'd just give it the once-over like most laws get, and that usually leads to judges saying the law is fine and dandy.
In saying that, he defined his job as limited to deciding if the classifications used by the Government are "rationally related to a legitimate government purpose."
In other words, the Government can't just do crazy stuff and get away with it. It has to be related to some legit purpose.
But that's the minimum standard. It's easy to come up with some legit purpose. For example, "public safety" is the perfect catch-all. Just cite "public safety," mention 9/11, and the judges will stand up and salute pretty much every time. Government acts judged under the minimum standard of review are usually given the OK by the courts.
But, surprisingly, Judge Tauro didn't give DOMA the old rubber stamp.
Instead, he said DOMA was unconstitutional, even under the minimum standard!
The Government's Rational Basis For DOMA
So Judge Tauro only required the Federal Government to come up with some rational basis. That's a fairly low standard. Even so, Judge Tauro rejected the Feds' argument, saying their basis for DOMA didn't make any sense.
Interestingly, Judge Tauro threw a somewhat unusual side-winder pitch on this point.
Usually, when judges say that a law doesn't meet the "rational basis" standard of review, they mean that the purposes asserted are not legitimate government purposes. An example of this is when one state tried to change the ballot access rules to make it harder for independent parties to get on the ballot. That purpose wasn't found to be a legitimate government purpose.
But in this case, Judge Tauro didn't say the Government's purposes were evil in and of themselves. (Well, he did say that for a few of the purposes mentioned by Congress in 96, when the law was passed, but the Justice Department was careful to distance itself from those.)
Instead, he said that the Government's purposes are fine -- but they're not actually related to the law.
That's very interesting, particularly since I wrote a law review article on this very point -- the little-understood "rational relationship" requirement -- last year. (Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas)
No Rational Relationship
Judge Tauro first knocked down the four interests which Congress originally said in 96 that it wanted to advance. He found these to be illegimate government purposes. Why is why the Justice Department distanced itself from them, and used other reasons to try to uphold DOMA. But just in case anyone asked about these, Judge Tauro carefully knocked down the easy pins:
(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.
In response, Judge Tauro noted that a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. He also said DOMA does nothing to promote stability in heterosexual parenting. As far as "encouraging responsible procreation," Judge Tauro had the chutzpah to quote Justice Scalia, from his dissent to Lawrence v. Texas, showing that Judge Tauro has an excellent sense of irony. In the Lawrence case, Justice Scalia said "the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country."
Judge Tauro also said that DOMA cannot possibly encourage the plaintiffs in the case to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. Also, gay people aren't going to marry members of the opposite sex because of DOMA. (duh)
So Judge Tauro boiled it all down to a crazy idea by Congress to make heterosexual marriage appear more valuable or desirable. But they did that "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit, and the U.S. Supreme Court has said so in previous cases.
For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such 'a bare congressional desire to harm a politically unpopular group.'
In other words, the Constitution doesn't let Congress make a law just because it doesn't like certain people. Oh, they can base their laws on hatred, but just not by itself. They have to have some other good reason also.
He also threw out the idea that the law can be based on defending traditional notions of morality. As the Supreme Court has said, "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...."
And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. Judge Tauro said that it's fine to save money, but there's no principled reason to cut government expenditures at the particular expense of gay people, apart from Congress' desire to express its disapproval.
Oh my goodness, there is so much more, but I've run out of time! More later today. (You can find my further post here.)
Isn't this so cool???