U.S. District Judge Claudia Wilken (N.D.Cal.) ruled on May 24 in Dragovich v. U.S. Department of the Treasury, No. C 10-01564 CW, that Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7, and Section 7702B(f) of the Internal Revenue Code, 26 U.S.C. Section 7702B(f), are unconstitutional to the extent that they limit the participation of same-sex spouses and domestic partners of California public employees in the long-term care insurance program provided by the California Public Employees' Retirement System (CalPERS). Judge Wilken premised her ruling on the equal protection requirement of the 5th Amendment of the U.S. Constitution, concluding that having disposed of the case on this basis, there was no need for her to address the plaintiffs' alternative substantive due process argument.
Judge Wilken's ruling on Section 3 of DOMA, which provides that for all purposes of federal law "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife," is consistent with rulings by several other district courts, but her ruling on the federal tax code provision, which limits favorable federal tax treatment for public employee long-term care plans to those that comply with the family-member status requirements of the federal Tax Code, broke new ground, in part because it extends beyond same-sex spouses to open up eligibility to registered same-sex domestic partners.
Plaintiffs are California public employees who are in civil marriages or registered domestic partnerships with same-sex partners, who sought to enroll their spouses or domestic partners for coverage under the state's long-term care insurance program. State officials declined to enroll them, citing the feared loss of favorable federal tax treatment for the overall program if they allowed participants who did not come within the federal limitations. The favored treatment means that employees can deduct the cost of premiums they pay to participate in the program, and the value of benefits is not taxed as income. The federal provision in question was enacted at about the same time as the Defense of Marriage Act in 1996.
The federal government's position in the case, presented by the Justice Department, is to concede that Section 3 of DOMA is unconstitutional, but to defend the tax code provision. The so-called Bipartisan Legal Advisory Committee of the House of Representatives (BLAG), which intervened to defend Section 3 of DOMA, has adopted the arguments that the Justice Department advanced unsuccessfully in attempting to defend Section 3 in Gill v. Office of Personnel Management, as well as the rationales for DOMA expressed by its supporters in Congress in 1996.
Judge Wilken held, unsurprisingly, that under existing 9th Circuit precedent she was bound to use rationality review as her standard for evaluating this constitutional challenge, since the 9th Circuit has yet to reconsider its position on sexual orientation discrimination in light of the Supreme Court's rulings in Romer v. Evans (1996) and Lawrence v. Texas (2003). However, as has proven true in other district courts around the country, this has not proven to be a stumbling block for gay rights plaintiffs in recent cases, as numerous federal district judges have reached a consensus that the arguments being advanced by BLAG in support of Section 3 are not rational. Rationality, in this context, would mean that the court could conclude that Congress had some legitimate, non-discriminatory reason for adopting the anti-gay marriage definition, other than moral disapproval of homosexuality (or, what is the same thing but never said out loud by the courts, pandering for votes from the anti-gay portion of the electorate). Each purported "rational basis" has to meet the test that a rational individual could genuinely believe that the proferred justification for the law would actually advance a legitimate state interest.
Judge Wilken's opinion draws liberally from the same sources as the recent opinions by her Northern District of California colleague, U.S. District Judge Jeffrey S. White, ruling in Golinski v. United States Office of Personnel Management, 824 F.Supp.2d 968 (N.D.Cal., Feb. 22, 2012), and the seminal decision on the unconstitutionality of Section 3, Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass., July 8, 2010), by Senior U.S. District Judge Joseph L. Tauro. These opinions mine the blatantly homophobic statements found in the Congressional record from the 1996 debate on passage of the DOMA, in which the most outspoken proponents of the legislation recited moral disapproval of homosexuality and same-sex relationships as the driving force behind the measure. Such motivations, which had then recently been discredited by the Supreme Court in Romer v. Evans, have since been even more strongly condemned by the Supreme Court in Lawrence v. Texas. As such, it is inescapable that anti-gay bias was a driving force behind the enactment, and cannot serve as a rational basis for the statute.
Under the rational basis test, however, even a measure enacted out of animus can be sustained if the court credits some other hypothesized legitimate reason for keeping the statute in place. Once one has ruled out the moral judgments of legislators or a desire to preserve the traditional definition of marriage as qualifying reasons, it is hard to think of other justifications that would meet the rationality test.
"The preservation of marriage as an institution that excludes gay men and lesbians for the sake of tradition is not a legitimate governmental interest," wrote Judge Wilken, who commented, "there is no principled distinction between anti-gay animus and a conception of civil marriage as an institution that cannot tolerate equally committed same-sex couples."
She also rejected BLAG's argument that adopting Section 3 was a "cautious legislative step" in 1996 in the face of the growing controversy about the possibility that same-sex marriages would become available in Hawaii. "The measure established an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage," she observed, noting the "sweeping range of federal provisions" conferring marital benefits that were withheld from gay partners. Since DOMA did not ban states from allowing same-sex couples to marry, "it created a new schism between state and federal domestic relations law." Rather than preserving any "status quo," she wrote, "DOMA marked a significant departure from federal deference to the states' authority in defining marriage."
She rejected outright the argument that DOMA could be sustained as a financial measure, noting that even BLAG had conceded the studies showing that federal recognition of same-sex marriages "would result in a net benefit to the federal treasury." Even if there were cost savings, however, she noted that such a rationale had never been accepted in defense of a discriminatory federal program. She also rejected the argument that DOMA would establish "uniformity in eligibility for federal benefits," pointing out that states have varied in their eligibility requirements for marriage and that the federal government had always gone along, with federal statutes typically stating that marriages recognized under state law would qualify for the particular federal benefit at issue.
One of the arguments that the Obama Administration's Justice Department has abandoned even in its original defense of Section 3 in the Gill case, but that BLAG has revived as it intervenes in pending DOMA cases, was the "responsible procreation" argument; "that Congress could rationally have enacted Section 3 of the DOMA to encourage marriage for heterosexual couples who, unlike same-sex couples, are generally at risk of accidentally conceiving children outside of marriage." Judge Wilken treated this argument with the scorn it deserves, pointing out that DOMA did nothing to incentivize heterosexuals to marry, and that there is no logical connection between denying marriage recognition for same-sex couples and encouraging heterosexuals to marry.
She also rejected BLAG's argument that DOMA "could have been passed to preserve the social link between marriage and child-rearing," pointing out that many same-sex couples are raising children regardless whether marriage is available to them or recognized by the federal government, and that "child-rearing is not the core attribute of marriage." Indeed, she observed, "there is no reasonable connection between the exclusion of same-sex spouses from the federal definition of marriage and minimizing the number of children born outside of wedlock." Again, she noted, "the law did not establish an incentive for heterosexual couples to marry; they were able to do so and enjoy federal recognition, prior to the enactment of the DOMA."
Thus, the evidence of anti-gay animus behind DOMA and the lack of any rational non-discriminatory justification for the measure meant that the Plaintiffs were entitled to summary judgment on their argument that Section 3 is unconstitutional "to the extent that the law blocks their access to the CalPERS long-term care plan." Judge Wilken found, however, that it was unnecessary to address the question whether same-sex registered domestic partners were entitled to judgment on this point, responding to their needs by her ensuing ruling on IRC Section 7702B(f).
Here, the argument focused on the limitation of family definition that Congress adopted in deciding who could participate in a tax-favored program to provide long-term care insurance to government employees. Judge Wilken found that "laws excluding registered domestic partners use that status as a proxy for homosexuality," so this was also a question of sexual orientation discrimination, which would be evaluated under the rational basis test. She rejected the defendants' argument that the provision is "neutral as to sexual orientation because other relatives, such as cousins, and individuals who share a close, family-like relationship are omitted from the list of eligible relatives," pointing out that the best analogy here is to spouses, inasmuch as California registered domestic partners are treated as spouses for all purposes of state law.
Although the specific legislative history of this tax provision does not abound with anti-gay statements by legislators, Judge Wilken accepted the argument that the exclusion of same-sex partners should be viewed in the broader context of Congressional sentiment expressed in connection with other relatively contemporaneous enactments. In addition to the DOMA debate, the District of Columbia Council had adopted a domestic partnership registry several years prior to the enactment of this statute, but Congress had repeatedly blocked its implementation by prohibiting the D.C. government from spending any money to set up and administer the registry -- a situation that persisted for a decade. The legislative history of those restrictions, predating the adoption of DOMA, taken together with the DOMA debate, supported the argument that anti-gay bias infected the exclusion of domestic partners. "The Court infers that Congress acted on anti-gay animus in refusing to include registered domestic partners in the list of relatives eligible to enroll in state-maintained long term care plans," she wrote, and she rejected the defendants' argument that the exclusion was rational because "no state recognized such relationships" in 1996. This conveniently overlooked that the District of Columbia and many municipalities already recognized domestic partners by then, and that Congress had already acted to block the D.C. registry prior to passing this tax provision. Thus, Congress was well aware of the existence of domestic partnerships when it was considering this tax measure.
Judge Wilken rejected several other arguments advanced by defendants, all of which strain logic and suggest the desperate attempts of the attorneys to come up with something that sounded both plausible and non-discriminatory. "Section 7702B(f) is actually inconsistent with Congress's expressed policy goal of encouraging the purchase of long-term care coverage generally," she wrote. "Congress's broad extension of favorable tax treatment to private plans was consistent with its policy goal. However, Congress imposed, pursuant to Section 7702B(f), a penalty, namely disqualification of state-maintained plans from favorable federal tax treatment, if they extended long-term care coverage to household members and relatives beyond the list of individuals sanctioned by Congress. Thus, none of the explanations put forth by Federal Defendants satisfies the rational basis test."
The the court concluded that "both provisions [Section 3 of DOMA and Section 7702B(f) of IRC] are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan." Judge Wilken indicated, however, that "a stay on State Defendants' compliance with this order will be granted, if a timely appeal is filed." Thus, although the court would issue an injunction requiring the administrators of the state plan to enroll same-sex spouses and registered domestic partners of employees as a remedy for the constitutional violations, this relief will not go into effect for now, because BLAG will pretty much automatically appeal any district court decision that it loses. Predictably, then, this case will join the lengthening list of pending appeals at the 9th Circuit involving the legal rights of same-sex couples, behind Perry v. Brown (the Proposition 8 case, as to which we still await the 9th Circuit's decision whether to grant a petition for en banc review) and Golinski, which has been scheduled for oral argument in September, the 9th Circuit having recently rejected the Justice Department's suggestion to expedite that case by going directly to an en banc panel.
Which means, of course, that more of your tax dollars will be going to BLAG's hired counsel -- former Solicitor General Paul Clement and his law firm -- to continue making discredited and illogical arguments while stringing out all the DOMA cases through the appellate process. BLAG's hope, of course, is that when they finally get one of these cases to the Supreme Court, they can persuade the conservative Republican majority there to accept one or more of these illogical arguments and render a political decision upholding Section 3 of DOMA. (BLAG is bipartisan in name only; it consists of 3 Republicans and 2 Democrats, who vote 3-2 on party lines on every issue.)
