1. THE MASSACHUSETTS CHALLENGE: GILL vs. OFFICE OF PERSONNEL
MANAGEMENT
On July 8, 2010, Judge Joseph L. Tauro of the U.S. District
Court for the District of Massachusetts declared Section 3 of the Defense of
Marriage Act unconstitutional - the first federal court to do so. The
case, Gill vs. Office of Personnel Management (Case No. 1:09-cv-10309-JLT), was
brought by seven same sex couples married in the state of Massachusetts.
These married couples sought federal recognition of their valid
marriages. The United States government, pursuant to the Defense of
Marriage Act, does not extend federal benefits to these and other same sex
couples whose marriages were formed in Massachusetts. According to Judge Tauro,
this represents a denial of equal protection. This decision represents a
first important step towards toppling the Defense of Marriage Act.
BACKGROUND TO
DOMA
Judge Tauro began his decision with a history of the enactment
of the Defense of Marriage Act (DOMA) in 1996. As the Judge identified,
DOMA was a response to Baehr v. Lewin, the 1993 Hawaii decision which first
asked whether denying marriage to same sex couples was a constitutional
violation; the judge concluded DOMA was inspired by a moral disapproval of
homosexuality. Judge Tauro continued by citing the General Accounting
Office report first issued in 1997, and amended in 2004, which found
"1,138 federal laws [tied] benefits, protections, rights or
responsibilities to marital status." The judge noted that the plaintiffs
sought "particular federal benefits available to married individuals"
and were uniformly denied by the requisite federal officials who "all
invoked DOMA's mandate that the federal government recognize only those
marriages between one man and one women."
RIGHTS DENIED
The judge summarized, at length, a sampling of the benefits
denied. For starters, health benefits for the same sex spouse of a US
Postal Service employee were denied by the federal government because a
"member of family" was defined as only a spouse or dependent child
under 22 years of age. Likewise, Social Security benefits were denied in
several cases; a same sex spouse claimed Social Security benefits based on her
individual earnings and the earnings of her spouse; a widower of a same sex
spouse sought Social Security survivor benefits and lump sum death
benefits. In all of these cased, the claims were denied although
the claims of similarly situated married heterosexuals would have been
granted. Lastly, plaintiffs sought and were denied the right to file
federal income tax returns jointly with same sex spouses.
EQUAL PROTECTION
After identifying the rights denied, Judge Tauro began his legal
analysis. He began by reviewing DOMA under the equal protection
clause. The Fifth Amendment is a limitation on the federal
government. Although it does not state the specific words, it is
interpreted to protect "the equal protection of the laws" for all
Americans. To summarize the concept, Judge Tauro quoted precedent: "all
persons similarly situated should be treated alike." As is
customary, the analysis focused on whether the court should apply strict
scrutiny to the Defense of Marriage Act. Strict scrutiny, "the most
searching of constitutional inquiries" is applied when laws impact
fundamental rights or affect suspect classes -defined as groups who are
historically victims of discrimination. When strict scrutiny does not
come into play, courts will apply the rational basis test and ask whether the
law "bears a rational relationship to a legitimate government
interest." This lesser standard usually means the law under review
is presumptively constitutional. Judge Tauro concluded strict scrutiny
was unnecessary in this case since the Defense of Marriage Act failed the
rational basis test.
RATIONAL BASIS
ANALYSIS
When DOMA was enacted, Congress identified four interests it
hoped to achieve: "encouraging responsible procreation,"defending
traditional heterosexual marriage,"morality [and] "preserving scarce
resources." To dismiss the first argument, the court pointed to the
consensus among experts that the children of gays and lesbians are as
well-adjusted as the children of heterosexuals and that procreation is not a
"precondition to marriage." As for the second argument,
defending heterosexual marriage is not achieved by punishing gays and lesbians
who are legally married under state law. Thirdly, it has been long
established that morality is never sufficient justification for laws.
Finally, preserving resources by punishing one group is simply impermissible.
In his analysis of the treatment of marriage under the law,
Judge Tauro explained domestic relations law is in the "exclusive province
of the states." The eligibility requirements for heterosexual
marriage have always been established by each state, and are varied among
them. The judge concluded, there has never been a federal interest in
uniformity of marriage laws. In fact, under our federalist system, the
"states alone" have the exclusive power to enact laws, such as
marriage eligibility requirements, that deal with matters exclusively under
their control; states tailor laws to meet their individual states' needs.
Even with state anti-miscegenation laws, outlawing interracial marriage and in
existence until the late 1960s, the Congress never acted to regulate marriage;
"the passage of DOMA marks the first time that the federal government has
ever attempted to legislatively mandate a uniform federal definition of
marriage or any other core concept of domestic relations, for that
matter."
Judge Tauro dismissed the federal argument that DOMA preserved
the status quo. He reasoned, when DOMA was enacted in 1996, the status
quo at the state level was marriage solely between one man and one woman.
However, the status quo at the federal level was to recognize marriages validly
formed pursuant to the laws of the state. Thus, DOMA represented "a
significant departure" from this status quo.
A frequent defense of DOMA is the argument that it prevents
inconsistencies among state laws. However, the court dispelled this
argument by identifying marriages that were recognized in only one state, such
as one between a 14 year old male and 13 year old female, allowed only in New
Hampshire. Although no other state would allow that marriage to be
formed, it would be recognized by the federal government and thereby recognized
by all of the states under the full faith and credit clause.
The court likewise dismissed the argument that DOMA reduces
administrative burdens on the federal government. Allowing states to
establish the requirements for validly forming a marriage, coupled with a
federal rule recognizing all marriages solemnized at the state level, actually
reduces administrative burdens. DOMA, by subverting this rule, acts
against the purported goal.
Absent any rational reason for enacting DOMA, the court concluded that
"animus" toward homosexuals is the true justification.
"[I]rrational prejudice plainly never constitutes a legitimate government
interest." Since the only conceivable reason Congress enacted DOMA was
"to disadvantage a group of which it disapproves" Judge Taruo held
"Section 3 of DOMA" violates the equal protection principles embodied
in the Fifth Amendment to the United States Constitution."
On October 12, 2010, the Department of Justice filed a Notice of
Appeal in the United States Court of Appeals, First Circuit. Oral
arguments should take place in late 2011.
SIGNIFICANCE OF THE DECISION
The significance of this decision cannot be discounted.
Five states in the U.S. and the District of Columbia allow same sex couples to
marry. Pursuant to DOMA, the federal government does not recognize these
marriages and permits other states to ignore them as well. These couples
have never enjoyed federal recognition or benefits. After 14 years of
discriminating against same sex couples, DOMA's days may be numbered.
1a. THE MASSACHUSETTS CHALLENGE (Part
2): COMMONWEALTH OF MASSACHUSETTS vs. US DEPARTMENT OF HEALTH AND HUMAN
SERVICES
In a companion case decided the same day as Gill, the
Commonwealth of Massachusetts challenged DOMA's denial of federal benefits to
its married same sex citizens. Judge Tauro held DOMA's interference
with matters exclusively within the power of the states violates the Tenth
Amendment to the Constitution. Additionally, since DOMA forces the
Commonwealth to deny certain rights to same sex citizens in order to obtain
federal funds, it violates the Spending Clause of the U.S. Constitution.
HISTORY OF MARITAL STATUS DETERMINATION IN THE U.S.
Judge Tauro began by reviewing the history of marriage
recognition in the U.S. Even pre-dating the Constitution, marriage
"rules and regulations" were determined by the colonies. After
declaring independence, each state legislature enacted marriage
determination and regulation laws. These rules corresponded with
"local circumstances and preferences." One legal historian
quoted in the decision, described the varied state laws as a "patchwork
quilt of marriage rules." Since the 19th century, prior attempts to
adopt a national definition of marriage and attempts to establish uniform
marriage regulations through national laws or a constitutional amendment all failed.
With respect to marriage rules, such as minimum age, common law marriage, and
divorce, the federal government has always deferred to state judgments.
In fact, even with the controversial issue of racial restrictions on marriage,
the anti-miscegenation laws which survived into the late 1960s, "the
federal government consistently relied on state determinations with regard to
marriage."
SAME-SEX MARRIAGE IN MASSACHUSETTS
From 2003, when the Supreme Judicial Court of Massachusetts held
that denying marriage to same sex couples violated the Massachusetts
Constitution, to February, 2010, over 15,000 same sex couples were issued
marriage licenses in the state. The conflict between DOMA and these same
sex marriages is felt in the denial of numerous state programs receiving
federal funds. For example, the Massachusetts Department of Veterans
Affairs (VA) received federal funds from the US Department of Veterans Affairs
for cemetery construction. Since VA cemeteries only permit the burial of
veterans and their spouses, when Massachusetts permits a same sex spouse of a
veteran to be buried in one of their cemeteries, the VA could demand a full
refund of all federal grants to the state. The Department of Health and
Human Services (HHS) reimburses the Massachusetts' Medicaid program, called
MassHealth, approximately 50% of its Medicaid expenditures. The Secretary
of HHS must approve the MassHealth Medicaid plan, in order to qualify for the
federal contributions. Pursuant to DOMA, federal law requires MassHealth
to treat same sex spouses eligible to receive Medicaid as single. Thus, a
same sex partner would not receive Medicaid benefits even if his or her spouse
is entitled to Medicaid because of their treatment as single individuals.
Based on the MassHealth Equity Act of 2008, Massachusetts bears the loss that
results: "no person who is recognized as a spouse under the laws of the
commonwealth shall be denied benefits that are otherwise available."
Ultimately, DOMA results in MassHealth failing to receive reimbursement for these
expenses.
DOMA AND THE TENTH AMENDMENT
The Tenth Amendment to the U.S. Constitution reads: "[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." As explained by Judge Tauro, the Amendment has been
interpreted by the Supreme Court to mean "[e]very law enacted by Congress
must be based on one or more of its powers enumerated in the
Constitution." The Tenth Amendment embodies a "founding principal"
of American government; notwithstanding the existence of the federal
government, the states are "sovereigns unto themselves."
Simply, if the Congress enacts a law pursuant to an enumerated power (from
Article 1, Section 8 of the Constitution) presumptively, the Tenth Amendment is
not violated.
When Congress acts beyond the scope of an enumerated power, case
law has developed tests to determine whether laws violate the Tenth
Amendment. So, federal laws cannot regulate core state governmental functions,
impact areas traditionally within the power of states, or threaten a states
separate and independent status. Judge Tauro concluded, the Defense of
Marriage Act regulates the commonwealth's core function of providing heath care
and creates significant additional costs. Additionally, throughout
history, marriage laws are within the exclusive power of the states;
Judge Tauro stated the evidence showed a "tradition of federal reliance on
state marital status determinations." Overwhelmingly, Supreme Court
decisions hold marriage and domestic relations laws are under state
control. Answering the question of a state's independent status, it is
clear, the federal government is attempting to regulate burial and health care
decisions of the government of Massachusetts, causing the loss of considerable
federal revenues and forcing the expenditure of Massachusetts tax
dollars. "That the government views same-sex marriage as a
contentious social issue cannot justify its intrusion on the 'core of sovereignty
retained by the States.' "
THE SPENDING POWER
In defense of DOMA, the federal government argued under its
Spending Power Congress can enact laws that disburse federal funds in whatever
manner it chooses. However, this power is not unlimited. The Supreme
Court identified several limitations to the spending power, including the
restriction that "legislation must not be barred by other
constitutional provisions." As held in the companion case, Gill vs.
Office of Personal Management (see above) DOMA violates the equal protection
components of the Fifth Amendment since "similarly-situated heterosexual
couples" receive marriage benefits denied to same sex couples. Thus,
DOMA cannot be justified under the federal spending power as "Congress has
exceeded the scope of its authority."
CONCLUSION
The Commonwealth of Massachusetts acted withing its authority by
recognizing same sex marriage; DOMA "plainly encroaches upon the firmly
entrenched province of the state." Thus, Judge Tauro concluded, DOMA
violates the Tenth Amendment and is unconstitutional. This companion case
to Gill was also appealed on October 12, 2010 and will be heard in late 2011 by
the U.S. Court of Appeals, First Circuit.
2. THE
NEW YORK CHALLENGE: WINDSOR v. UNITED STATES
On November 9, 2010, the ACLU, in conjunction with the New York Civil
Liberties Union and Paul, Weiss, Rifkind, Wharton & Garrison, brought suit
in the United States District Court for the Southern District of New York
challenging the constitutionality of the Defense of Marriage Act as t affects
one married same sex couple in New York.
Edith “Edie” Windsor and Thea Spyer started dating in 1965. They remained in a committed relationship for
over 44 years. In 2007, the partners
were legally married in Canada. After a
long battle with multiple sclerosis, Thea Spyer died in 2009. Although the marriage was recognized in New
York based on Governor Patterson’s executive order, the federal government did
not recognize this marriage, pursuant to DOMA. Similarly situated married heterosexual
couples enjoy the right to inherit from each other with no tax
consequences. If Edie Windsor’s marriage
were recognized by the federal government—if she were married to a man—her
inheritance would be fully exempt from the payment of federal estate taxes. Conversely, unable to enjoy the privilege of
the marital deduction, Edie Windsor paid the sum of $363,053.00 in federal
estate taxes.
Since, under federal tax law marriage determinations are resolved under
local law, and New York recognizes the marriage between the parties, Edie
Windsor seeks a full refund of the estate tax payment. The attorneys for Edie Windsor argue the
denial of the marital deduction by the IRS, by operation of DOMA, “creates a
classification that singles out one class of valid marriages—those of same-sex
couples.” Thus, this unequal treatment
of same sex couples by the federal government violates “the right of equal
protection secured by the Fifth Amendment to the Constitution of the United
States.”
3. THE NEW
ENGLAND CHALLENGE: PEDERSEN v. OFFICE OF PERSONNEL MANAGEMENT
On November 9, 2010, the same day Windsor v. US was filed, the Gay &
Lesbian Advocates & Defenders (GLAD) brought suit in the United States
District Court for the District of Connecticut challenging the
constitutionality of the Defense of Marriage Act as it affects married same sex
couples in Connecticut, Vermont and New Hampshire. The specific challenge involves the denial of
various federal programs to three couples and one widower.
Joanne Pedersen, a retired civil employee of the US Navy and resident of
Connecticut, was denied the right to extend her health coverage under the
Federal Employees Health Benefits Program to her same sex spouse. Likewise, a same sex spouse married in
Vermont was denied leave under the federal Family Medical Leave Act. Additional issues from Vermont and New
Hampshire address the Internal Revenue Service’s enforcement of rights under
pensions and annuities. In sum, DOMA
treats same sex married couples unequally to heterosexual married couples. The challenges are based on the equal
protection components of the Fifth Amendment and the Fourteenth Amendment’s
equal protection clause.
The Pedersen challenge is an important part of the national movement to
challenge DOMA through the federal courts.
It adds plaintiffs from three more states where same sex marriage is
recognized, giving more human faces to the discrimination. Additionally, it gives examples of specific
laws DOMA impacts among the oft-quoted 1,138 rights and benefits.
4. THE
RESPECT FOR MARRIAGE ACT
On September 15, 2009, a bill was introduced in the House
of Representatives titled the "Respect for Marriage Act." The purpose
of this bill is to repeal the Defense of Marriage Act. The act restores
the "place-of-celebration" rule which re-asserts the old common law
principle that a marriage recognized under a state's law must be recognized in
all other states; thus, the act restores the full faith and credit clause of
the U.S. Constitution. One surprising supporter of the new bill is
President Bill Clinton. Although he signed DOMA in 1996 he stated, in a
recent interview that he has changed his mind and now feels DOMA should be repealed.
As of September 2010, the bill has 120 co-sponsors. The text of the bill follows:
“Section 7 of title 1, United States Code, is
amended to read as follows:
(a) For the purposes of any Federal law in
which marital status is a factor, an individual shall be considered married if
that individual's marriage is valid in the State where the marriage was entered
into or, in the case of a marriage entered into outside any State, if the
marriage is valid in the place where entered into and the marriage could have
been entered into in a State.
At present, the bill
remains in the House Subcommittee on the Constitution, Civil Rights and Civil
Liberties.