Monday, July 12, 2010

DOMA Rundown: Gill v. Office of Personnel Management

A federal judge in Massachusetts has ruled that the section of the Defense of Marriage Act (DOMA) that defines marriage as "only a legal union between one man and one woman" is unconstitutional. (PDF)

The effect of DOMA, if you remember, is to prohibit the federal government from granting same-sex couples any of the federal benefits of legal marriage, even if these couples are legally married in a particular state. It's a sweeping, nationwide codification of separate-but-equal status for same-sex couples.

My summary of this case, Gill v. Office of Personnel Management, follows. (The judge also issued an opinion in a companion case, Massacussetts v. US Department of Health and Human Services, which I will address tomorrow):

Judge Tauro began by looking at the legislative history of DOMA, noting that it was passed as a reaction to a Hawaii Supreme Court decision that indicated a ban on same-sex marriage might be unconstitutional. The House Report on DOMA further indicated a desire to prevent an "orchestrated legal assault" on heterosexual marriage and to prevent "homosexual couples," whom members of Congress repeatedly accused of engaging in "immoral," "depraved," and "unnatural" acts, from receiving federal benefits of marriage. While acknowledging that under the tenets of federalism, "[t]he determination of who may marry in the United States is uniquely a function of state law," the House Report explained that Congress was not supportive of "same-sex 'marriage.'"

That argument is what I like to call the Homo Exception to the conservative states' rights argument. That is, states should have the right to define their own laws. Oh, except when it involves homosexuality. Then the federal government should enact sweeping anti-gay laws for the entire nation, affecting every single state.

Judge Tauro then noted that DOMA's definition of marriage implicated at least 1,049 federal laws, several of which are implicated in this particular case. Because of DOMA, the federal governement denied the same-sex couples in this case federal health benefits, federal dental and vision benefits, a flexible spending arrangement, social security retirement benefits, social security survivor benefits, and the ability to file income taxes jointly.

Under an Equal Protection analysis, Judge Tauro notes that DOMA fails to pass muster even under the most lenient rational basis review, while declining to address the issue of whether strict scrutiny should be applied to laws targeting "homosexuals." I find it troubling that federal courts have not yet applied strict scrutiny to laws against same-sex marriage and have not yet found a fundamental right for same-sex couples to marry. Nonetheless, this opinion is still good news because it doesn't bar the future application of strict scrutiny and it follows a trend, beginning with Romer v. Evans, of courts striking down anti-gay measures under rational basis review. Let's hope this continues with the pending Perry v. Schwarzenegger decision.

Under rational basis, as articulated by Tauro, a law is constitutional 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]." Congress' stated purposes of DOMA were four: (1) to encourage responsible procreation, (2) to defend traditional heterosexual marriage, (3) to defend traditional notions of morality, and (4) to preserve scarce resources.

With respect to the first purpose, the government readily conceded that DOMA is in no way rationally related to encouraging responsible heterosexual procreation as preventing same-sex couples from marrying "does nothing to promote stability in heterosexual parenting." That is an interesting development, given that Chuck Cooper grounded his Perry defense of Prop 8 entirely in the Responsible Procreation argument. We'll see soon enough how that works out for him.

Tauro dispatches the second purpose by noting that DOMA does nothing to encourage the plaintiff lesbian and gays to enter into heterosexual marriages because the plaintiffs are already in same-sex marriages. Further, denying marital benefits to same-sex married couples "bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure." Which, of course, falls into the No Shit category.

With respect to the third purpose, constitutional precedent has made clear that the fact that a majority finds a practice to be immoral is not a sufficient justification for upholding a discriminatory law. And, as for the fourth purpose of DOMA, the Court could find "no principled reason" as to why public resources should be conserved at the particular expense of same-sex married couples.

In light of these rather flaccid purposes of DOMA, the government also offered new ex post facto reasons for enacting DOMA. These new reasons essentially boiled down to, to paraphrase, DOMA makes things legally easy for the government by ensuring same-sex couples are consistently denied benefits whether they're legally married or not. That is, the federal government has an interest in ensuring a consistent, uniform definition of marriage.

On that point, Judge Tauro disagreed. Eligibility for marriage in the US has always been a matter of state determination and marriage laws have always varied state by state. "And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid for federal purposes any heterosexual marriage which has been declared valid by state law." DOMA, however, "marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage...." and it does so without being rationally related to the proferred purpose of providing consistency in distribution of marriage benefits. Instead, DOMA actually complicates the law, creating a class of legally married people eligible for benefits and a class of legally married people who are ineligible.

To end, let's hear Judge Tauro sum it up:

"[T]his 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....

Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit."

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