THE Legal Challenge to DOMA (the "Defense of Marriage Act") is Filed!

Gay and Lesbian Advocates & Defenders has filed a challenge to the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), a provision of federal law that requires the federal government to refuse to recognize same-sex marriages, or to treat the partners in same-sex marriages as spouses, for any purpose of federal law. The lawsuit, filed in U.S. District Court in Boston under the name of Gill v. Office of Personnel Management on March 3, brings together the claims of fifteen plaintiffs, all of whom were lawfully married in Massachusetts soon after the Goodridge decision went into effect on May 17, 2004.

Section 3 of DOMA, codified at 1 U.S.C. sec. 7, provides: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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 a wife." The section also inserted into the "table of sections" of title 1 of the U.S. Code, an entry identifying this provision as "Definition of ‘marriage’ and ‘spouse’. This was the first time in the history of the U.S. that Congress adopted a federal definition of those terms.

The large gathering of plaintiffs ensures that the "standing" element required to attack the constitutionality of a law in federal court will be satisfied, since each couple or surviving spouse, as the case may be, has been denied a particular benefit of federal law as a result of the explicit application of DOMA to their case. In fact, the lengthy complaint cites chapter and verse, and quotes in full various written communications from government agencies to the plaintiffs, specifically invoking DOMA to refuse to recognize their marriages in the context of tax and social security claims, as well as survivor benefits in the case of the three men who survive their same-sex spouses. In case some of these plaintiffs’ claims, which are still potentially subject to internal appeals, are found not to be ripe for adjudication, there remain several plaintiffs as to whom it is clear that every possible administrative appeal has been exhausted, so the overall case is unlikely to be defeated on standing grounds.

Adding a bit of historical resonance and celebrity glamor to the case is the inclusion as a plaintiff of Dean Hara, who was married to U.S. Representative Gerry Studds, a Massachusetts Congressman who was the first "out" federal elected official. Among various claims, Hara seeks to invoke his entitlement to the same survivor’s benefits that the government extends to all married survivors of long-serving members of Congress, noting that while Congressman Studds was actively serving in Congress, Hara was recognized as his partner and accorded various spousal privileges on Capitol Hill, even before same-sex marriage was legally available. Hara and Studds were married as soon as that status became available in Massachusetts, when Studds had been retired from Congress for several years.

Among the named defendants are the federal Office of Personnel Management, the U.S. Postal Service (which employed one of the plaintiffs), Social Security Administrator Michael J. Astrue, Secretary of State Hillary Rodham Clinton (whose office administers the passport program, which refused to issue a passport using the married surname of one of the plaintiffs), Attorney General Eric Holder, and the federal government as a whole. The named defendants are sued in their official capacity, not as individuals. Indeed, during the presidential primary campaign last year, then-Senator Clinton called for repeal of Section 3 of DOMA, the provision challenged in this case. The real defendant, of course, is the U.S. Congress, which enacted DOMA and has shown no sign of intending to repeal it, although various members seeking the endorsement of LGBT political groups in their election campaigns have pledged to seek its repeal.

The plaintiffs’ claims are brought under the 5^th Amendment of the Bill of Rights, which the Supreme Court has interpreted to require the federal government to afford the same "equal protection of the law" to all Americans that the 14^th Amendment expressly requires the states to afford to their residents.

The Defense of Marriage Act was passed during the period of national hysteria coinciding with the first full-blown trial to be held in a case seeking marriage licenses for same-sex couples, the Baehr case in Hawaii. After a trial judge had initially dismissed the case for failing to state a valid legal claim, the Hawaii Supreme Court issued a ruling in 1993 reversing the trial court, holding that the plaintiffs had stated a potentially valid claim of sex discrimination under the Hawaii Constitution, and returned the case to the trial court. Pretrial discovery then consumed several years, and a trial was finally scheduled to be held in October 1996, falling into the middle of a national election year.

That spring, Republicans looking for an issue to use against incumbent President Bill Clinton raised the same-sex marriage issue during the presidential primary campaign season. Picking up on speculation in the press that a victory for same-sex marriage in Hawaii would see same-sex couples streaming to the Aloha State to wed and then returning home to demand that their marriages be reocgnized, the Republicans whipped up national hysteria about marriage policy being dictated to the entire country by the Hawaii courts. The leading Republican presidential candidate, Senate Majority Leader Bob Dole, introduced the so-called "Defense of Marriage Act" in Congress, and President Clinton, seeking to neutralize the issue, promptly announced his support for it. The statute was enacted shortly before the election. In December 1996, the trial judge in the Baehr case ruled for the plaintiffs, but the effect of the decision was delayed by the state’s appeal. The Hawaii legislature then passed a pair of bills, first placing a state constitutional amendment on the ballot reserving to the legislature the right to decide whether same-sex couples could marry, and the second creating for the first time in the United States a state-level legal status for same-sex couples, called reciprocal beneficiaries, that provided some of the rights accorded to married couples to those who registered as such. The amendment was enacted and the Baehr court decision was mooted.

DOMA sought to sharply circumscribe the effect of any state deciding to allow same-sex couples to marry, by purporting to excuse the other states from any obligation to recognize such marriages under the Constitution’s Full Faith and Credit Clause, and to establish, for the first time, a federal definition of marriage for all purposes of federal law that would be limited to the marriage of one man and one woman. In terms of its first goal, DOMA was largely symbolic, since scrutiny of marriage recognition cases suggests that the Full Faith and Credit Clause is not really relevant to that issue; rather, courts apply common law comity principles to decide whether to recognize marriages performed in other jurisdictions. The Supreme Court has never directly held that this constitutional provision requires any state to recognize marriages contracted in other states.

And, in terms of its second goal, DOMA was at the time of its enactment a solution in search of a problem, since in fact it was not until after the turn of the century that same-sex marriages became available anywhere in the world, and not until May 17, 2004, that they became available anywhere in the United States.

Once same-sex marriages became available, pressure began to mount to challenge DOMA. So far, all such challenges that have been raised by individual plaintiffs have been unsuccessful – with one special recent exception – and the LGBT public interest litigation groups have generally discouraged individuals from attempting to challenge DOMA. Indeed, the public interest groups filed an amicus brief in the 9^th Circuit in a DOMA challenge, arguing that the plaintiffs lacked standing because they were not married, an argument the court accepted. The litigation groups collectively advised people to bide their time and to lay careful groundwork for a consolidated challenge mounted from a jurisdiction where the right to marry was solidly established. (The one exception is a recent ruling by a single member of the 9^th Circuit Court of Appeals, Judge William Canby, Jr., ruling on an internal grievance brought by a federal defender attorney who married his same-sex partner in California, seeking to add his partner to his federal court employee insurance coverage. Judge Canby ruled that DOMA was unconstitutional to the extent it would interfere with providing the benefits. But the ruling is unpublished and not an official federal court ruling.)

Now GLAD, the organization that won the same-sex marriage cases in the Supreme Courts of Massachusetts (2003) and Connecticut (2008), has brought a carefully constructed challenge to DOMA. Despite the 92-page complaint, the case boils down to a simple proposition. Same-sex couples who have lawfully married in Massachusetts, most of them almost five years ago, have been consistently and repeatedly denied federal benefits that are freely extended to different-sex couples married in Massachusetts, and the federal government has no legitimate basis for distinguishing between the plaintiffs’ marriages and the other marriages which are held to qualify for those benefits.

The complaint points out that from the time the United States was founded until 1996, "the United States has consistently deferred to the sovereignty of the States when the marital status of an individual has been used as a marker of eligibility or access to some benefit, right, or responsibility identified by the federal government." Family law in this country has traditionally been seen as a purely local matter, not within the legislative prerogative of Congress. When Congress passed DOMA in 1996, it "took the unprecedented step of preemptively nullifying a class of marriages that it expected states would begin to license at some point in the future, that is, marriages of same-sex couples." As a consequence, once same-sex couples won the right to marry in Massachusetts, they were "denied legal protections normally available to spouses under federal law."

When a statute is challenged as violating equal protection of the law, the courts first determine whether similarly-situated people are being treated differently, and then whether the government has a legitimate justification for the different treatment. In its equal protection jurisprudence, the Supreme Court has come to require higher levels of justification from the government depending on the type of classification that is set up by a statute and the nature of the right at issue. "Suspect classifications," such as race, invoke "strict scrutiny," which means that the government must have a compelling reason for classifying based on race, and the challenged policy must be "narrowly tailored" as necessary to accomplish the government’s goal while discriminating as little as possible. However, most equal protection cases do not involve suspect classifications or fundamental rights, so a less demanding level of judicial review might be used. However, in all cases the government must have at least a legitimate governmental interest to justify the differential treatment.

The question whether government policies that discriminate against gay people are subject to strict scrutiny or heightened scrutiny is the subject of much argument among legal commentators. Many federal and state courts have mistakenly concluded that the Supreme Court decided in Romer v. Evans in 1996 that only the least demanding level of judicial review, the so-called rational basis test, is applicable to anti-gay policies. A few have argued that, especially in light of Lawrence v. Texas, a heightened level of scrutiny is required. This was the view of Judge Canby in his separate opinion in last year’s 9^th Circuit ruling in the Witt case, a challenge to the application of the military "don’t ask, don’t tell" policy. GLAD does not take on this controversy in its complaint, although it is possible that if issue is joined in the case, it may argue for some heightened level of scrutiny for DOMA. But the complaint is framed to argue that Section 3 of DOMA lacks any legitimate justification, and thus would fail the rational basis test.

It is clear, as GLAD alleges, that there is only one class of marriage in Massachusetts, open to both different-sex and same-sex couples. As a matter of state law, they are equally married and equally entitled to all the rights of marriage under Massachusetts law. Thus similarly situated, the question is why the federal government afford a vast array of benefits and rights to different sex marriages but treats same-sex marriages performed in the same state as a nullity.

In this case, the statute itself does not recite policy reasons for its enactment, so GLAD’s complaint looks to the legislative history, where a report prepared by a committee staff in the House of Representatives identified four reasons to adopt the bill. The House Report asserted that the bill "advances the government’s interest in defending and nurturing the institution of traditional heterosexual marriage, advances the government’s interest in defending traditional notions of morality, advances the government’s interest in protecting state sovereignty and democratic self governance, and advances the government’s interest in preserving scarce government resources."

Of course, only three of these are on their face relevant to the provision of DOMA challenged in this case. The business about state sovereignty is invoked to justify the other operative provision of the statute, which purports to relieve states of any constitutional obligation to recognize same-sex marriages contracted in other states. Arguably, this protects state sovereignty by allowing one state to refuse to have its marriage policies dictated or affected by the marriage policies adopted in another state, and thus preserves "state sovereignty." But the GLAD complaint points out that in terms of state sovereignty, the federal marriage definition in Section 3 of DOMA does exactly the opposite, undermining state sovereignty by depriving married couples of benefits to which they should be entitled by virtue of their lawful marriage under state law. It effectively says that no state may confer on same-sex couples the same married status in terms of federal rights and benefits that it can confer on different-sex couples, thus impairing the sovereignty of the states as the traditional definers and protectors of marriage.

As to the other justifications, GLAD asserts that the first "simply restates the government’s intent to discriminate against same-sex couples and provides no independent justification for the government’s discriminatory action." The first rationale does not explain why the government needs to deny benefits to same-sex marriages in order to nurture different-sex marriages. Perhaps it implies that recognizing same-sex marriages would in some way weaken different-sex marriages, or deter different-sex couples from marrying, but there is no factual basis offered to support this claim.

The "morality" rationale may have seemed legitimate back in 1996, when Congress had before it the precedent of Bowers v. Hardwick, which rejected a challenge to the Georgia sodomy law on the ground that the Georgia legislators were entitled to enact their moral judgments about homosexuality in the form of criminal law. But in 2003 the U.S. Supreme Court reversed Bowers in the case of Lawrence v. Texas and disavowed that moralistic justification. In his bitter dissenting opinion in Lawrence, Justice Antonin Scalia accused the Court of adopting a principle that could invalidate all "morals" legislation. While some commentators and lower courts have treated Scalia’s concern as hyperbolic rather than an accurate description of the majority opinion, there is a strong argument to be made that Lawrence stands for the proposition that the government may not enact oppressive or discriminatory policies in order to enact majoritarian morality, and that in fact the government has no legitimate interest in "defending traditional notions of morality." This relates to a jurisprudential debate going back a long time in the U.S. and England over whether government has a legitimate interest in enacting the private moral views of legislators into law. The existence of the First Amendment in the U.S. Bill of Rights, protecting individuals from government interference in matters of belief, suggests one answer to this question.

As to preserving scarce government resources, GLAD asserts that "while the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families. Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex. Singling out same-sex couples who are married among all married people is simply an expression of the intent to discriminate against gay people." In other words, and put rather more bluntly, my partner and I pay the same federal and state taxes as everybody else, and we are paying to provide all kinds of benefits to different-sex married couples all about us, but even were we to marry in Connecticut (and have our marriage recognized in New York under current law), we would not be eligible for any federal marital benefits or rights, even though we have been domestic partners for 30 years. We don’t enjoy any special reduction in taxes to make up for the fact that the government has categorically excluded us from being eligible for these benefits. Where is the "equal protection of the laws" in that?

The complaint concludes, on this point, that "at root, DOMA is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest." Although the complaint is not a place to spell out and fully develop the plaintiffs’ legal theory, this simple sentence immediately brings to mind a line of Supreme Court cases that culminated in Justice Sandra Day O’Connor’s concurring opinion in Lawrence, in which she observed that the Court had consistently rejected the idea that government can discriminate against a group on the basis that a political majority disapproves of that group. This is, in essence, discrimination for its own sake, something that the Court specifically condemned in the context of sexual orientation in its 1996 ruling in Romer v. Evans.

What is the chance that this lawsuit will be successful? To me, the more interesting question is what is the likelihood that this lawsuit will become moot before it is finally decided?

Federal civil litigation presenting politically contentions issues tends to take a long time if there is no immediate requirement of a speedy disposition. The famous Pentagon Papers case went from federal trial courts to the Supreme Court in a matter of months, because the case involved an injunction against major national newspapers publishing a story of significant public concern, an unprecedented prior restraint of freedom of the press. But this kind of civil litigation in which the issue would not be seen by most of the public as a matter of pressing concern is likely to take years. Romer v. Evans was filed the day after election day in November, 1992, when Colorado Amendment 2 was passed by the voters, and didn’t get finally decided by the U.S. Supreme Court until May 20, 1996, three and a half years later. It is possible that the Obama Administration and the Democrat Congress will either have repealed Section 3 of DOMA outright, or have passed ameliorative legislation making exceptions to Section 3 of DOMA in order to fix the most blatant inequities in federal law that DOMA imposes, before a final appellate ruling could be reached in this case. President Obama ran for office advocating the repeal of DOMA, and repeal stands as one of his articulated policy positions on the White House website. It is possible that over the next several years – perhaps long before Gill v. Office of Personnel Management comes to even a trial court decision – the government will have changed its policies and negotiated a settlement to compensate those plaintiffs who have shown actual financial injury as a result of the denial of benefits in their individual cases. It will be very interesting to see how the Justice Department reacts to the filing of this lawsuit.

If this case were to come to an actual decision on the merits, it is hard to know how an intellectually honest court could decide this case against the plaintiffs without significantly revising federal equal protection doctrine, as the blatant unconstitutionality of Section 3 of DOMA in light of that doctrine has been evident to many legal scholars since it was first proposed by Senator Dole back in 1996.

Comments

[Kay C]

So ... will GLAD's challenge take up the enumerated powers clause directly or only hint at it and focus instead on the equal protection theory? Wouldn't it be best to ask the courts to consider all possible theories?

Also, is the Obama Justice Department required to defend the law or can they agree with the suing parties (as is happening, sort of, in CA with Prop 8)?

Thanks,
Kay

[Art Leonard]

I'm not privy to GLAD's litigation strategy, apart from reading the complaint and their press releases. The complaint relies on the 5th Amendment.

I think one could argue that legislating on the subject of marriage exceeds Congress's authority on the theory that domestic relations is a local issue and not within the enumerated powers in Article I. On the other hand, the "necessary and proper clause" is given a broad reading, generally, and one could persuasively argue, I'm sure, that inasmuch as there are numerous statutes that are constitutional beyond dispute and that refer to marriage or spouses, it is within the scope of Congressional authority to define those terms as they are used in those statutes. I don't think one would get very far arguing that Congress is constitutionally constrained by Article I to rely on the states in determining who is entitled to access federal benefits.

This is not to say I think GLAD should not try to make the argument, just that I think it would probably be a wasted effort. And the equal protection violation is so abundantly clear, IMHO.