Defense of Marriage Act Roundup

“In you I find a reason/And hope for all dreamers”

In the United States June is for many a month for weddings, and the month when many places have LGBT Pride celebrations, so it seems fitting to address a new round of decisions about the odious so-called “Defense of Marriage Act” (or “DOMA”).  In late May and early June, four federal courts in as many weeks ruled that DOMA’S prohibition on the federal government’s recognizing legal marriages of same-sex couples (entered into in states or jurisdictions that allow them) violates the equality commands of the U.S. Constitution.  All four decisions held (one way or another) that DOMA failed the deferential form of judicial scrutiny termed rational basis review, continuing a pattern that has been emerging starting in 2010.  With such a barrage of decisions coming from the federal courts, including judges nominated by Republican presidents, it seems somewhat more likely that the Supreme Court would agree and hold DOMA unconstitutional should it choose to take up one or more of these cases.

Karen Golinski & wife Amy Cunninghis, Photo:NYT/Jim Wilson

The first in this string of decisions was Golinski v. Office of Personnel Management (N.D. Cal. May 22, 2012), opinion hosted here by Hunter of Justice, the excellent blog by Georgetown law professor Nan D. Hunter.  The case began when Ninth Circuit Court of Appeals staff attorney Karen Golinski tried to enroll her legal wife in the family coverage health insurance plan provided to court employees.  After lengthy bureaucratic wrangling, including the federal Office of Personnel Management (OPM) denying administrative authority claimed by Ninth Circuit Chief Judge Alex Kozinski, Golinski sued in federal court, arguing that the federal definition section of DOMA’s refusal to recognize her as legally married for purposes of the laws governing federal employee benefits violated her constitutional equal protection rights.  The district court agreed, but its reasoning was noteworthy:  Primarily, the court held that DOMA discriminates against some married couples on the basis of sexual orientation, which in its view subjected the law to a form of heightened scrutiny and which DOMA failed; in the alternative, the court held, as had some prior cases, that DOMA fails even rational basis review.

How much of a justification the government must have to treat people unequally despite the constitutional guarantee of equal protection of the laws depends upon the type of discrimination at issue and the type of scrutiny the courts apply to that.  Most legal distinctions are subject to review only for a “rational basis,” a typically weak standard requiring that the challenged law at least hypothetically could serve any legitimate government purpose in some rational way; most laws also survive this weak standard of review.  Some forms of discrimination, however, are subject to less deferential, more skeptical judicial review.  Governmental sex discrimination, for example, must survive “intermediate scrutiny,” and so the discriminatory law’s actual purpose must be not merely legitimate but “important,” and the discrimination must be not merely rationally but “substantially” related to that purpose.  And when the government treats people differently on the basis of race, courts apply “strict scrutiny” and require the government to prove that its law is “narrowly tailored” or “necessary” to further some interest that is not just legitimate or even important but actually “compelling”; few laws survive such scrutiny.

Golinksi resoned that earlier Ninth Circuit precedent holding sexual orientation discrimination subject only to rational basis review had been undermined by Supreme court decisions such as Lawrence v. Texas (holding in 2003 that Texas’s “homosexual conduct” law was unconstitutional and overruling Bowers v. Hardwick, the Court’s 1986 decision upholding Georgia’s sodomy law).  The trial court considered many factors that courts use to determine the proper level of scrutiny, including the history of invidious discrimination against lesbigay persons, the irrelevance of sexual orientation to a person’s ability to contribute to society, the immutability or resistance to change or centrality to identity of sexual orientation for the vast majority of people, and the political vulnerability or lack of meaningful political power of lesbigay people as a minority in society.  Although the court’s reasoning did not cleanly differentiate between the two forms of heightened scrutiny, strict scrutiny and intermediate scrutiny, its opinion is probably best read as holding that DOMA must survive at least intermediate scrutiny (so must be substantially related to an important government interest, not just rationally related to a merely legitimate interest) and that it fails to do so.  With most federal courts using only rational basis review to address sexual orientation even if in recent years they have more often found anti-lesbigay laws unconstitutional under that deferential standard, Golinski’s embrace of heightened scrutiny, in accord with the weight of law journal analyses of the issue, heightens the opinion’s significance, no pun intended.

Photo: Legal Aid Society-Employment Law Center

Two days later, in Dragovich  v. U.S. Department of Treasury (N.D. Cal. May 24, 2012, opinion hosted here by the Legal Aid Society) another federal judge from Northern California also held the federal definition section of DOMA unconstitutional.  In Dragovich, the Legal Aid Society-Employment Law Center filed a class-action lawsuit with a number of same-sex couples, some lawfully married under California law like Patricia Fitsimmons and Elizabeth Litteral and some in state registered domestic partnerships, as named plaintiffs challenging DOMA’s definition of marriage excluding same-sex couples and provisions of federal tax law to the extent those laws limited their participation in long-term care insurance offered by CalPERS, the California Public Employees’ Retirement System. 

Rather than take Golinski’s approach and conclude that Supreme Court developments had undermined Ninth Circuit precedent requiring rational basis review, the Dragovich court stuck with that precedent and asked whether DOMA’s anti-lesbigay discrimination in this context was rationally related to a legitimate governmental purpose.  The court rejected arguments that DOMA was justifiable as a way to exercise caution, a measure to conserve government money, an attempt to preserve uniformity of eligibility for federal benefits, or a way to encourage responsible procreation and/or to preserve a social or symbolic link between marriage and procreation.  This left only the “moral condemnation and social disapprobation of same-sex couples” with evidence of which the congressional record was replete, but which cannot sustain a discriminatory law even under the deferential approach courts adopt with rational basis review.

Going beyond Golinksi and other prior DOMA cases, Dragovich also held that, aside from DOMA, the exclusion of same-sex state registered domestic partners from favorable federal tax treatment for CalPERS failed rational basis review.  Because the relevant tax law treats registered domestic partners differently from married couples, and California law excludes same-sex couples from civil marriage, relegating them to domestic partnerships, the court held that the tax law discriminated on the basis of sexual orientation.  Examining various congressional pronouncements from the period when the tax  law at issue was adopted, which was basically contemporaneous with the enactment of DOMA, the court concluded 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.”  Because that is an impermissible justification for any governmental action, and because no legitimate governmental purpose (such as easing the administration of such plans) was rationally advanced by the statutory exclusion, Golinski held it to violate constitutional equal protection principles.

Nancy Gill & wife Marcelle Letourneau, Photo: Gay and Lesbian Advocates and Defenders

One week later, the U.S. Court of Appeals for the First Circuit also ruled that the DOMA’s restrictive federal definition of marriage is unconstitutional.  The First Circuit opinion in Massachusetts v. U.S. Department of Health and Human Services is hosted by Metro Weekly here.  Barred by circuit precedent from subjecting the statutory discrimination to the more stringent forms of scrutiny applied to sex or race discrimination, the Court of Appeals in a novel but not wholly unprecedented move concluded that a combination of discrimination and federalism concerns “require[d] a closer than usual review” of the statute, which DOMA failed.  The court therefore affirmed the trial court’s injunction against enforcement of DOMA in a relatively narrow opinion whose reasoning could well appeal to a majority of Justices on the U.S. Supreme Court.

The Massachusetts litigation began as two suits, one brought by Massachusetts and one brought by same-sex couples or surviving members thereof legally married in that state, challenging the denial of specified federal benefits that would have been paid were same-sex couples’ marriages recognized.  (I wrote about the trial court decisions in those cases here.)  Resolving the appeals from both suits with one decision, the Court of Appeals for the First Circuit wrote a candid, creative, and careful opinion, concluding that the federal government lacked a constitutionally sufficient justification for entering a domain traditionally regulated by the states and categorically discriminating against same-sex couples lawfully married in Massachusetts.

The unanimous Court of Appeals opinion was authored by highly respected Judge Michael Boudin, who was appointed to that court by the first President Bush. The opinion was strikingly candid, on both micro and macro levels.  Following an initial admission that “[t]his case is difficult,” the court acknowledged that the precedents bearing on the constitutional questions did not all speak with one voice.  And ultimately, the judges predicted, “only the Supreme Court can finally decide

this unique case.”

The couples or surviving members of couples challenging DOMA argued that sexual orientation discrimination should be subject to a more stringent level of scrutiny than rational basis review.  Unfortunately, First Circuit precedent (from a case, Cook v. Gates, challenging the military’s former “Don’t Ask, Don’t Tell” policy) held that sexual orientation discrimination was not suspect  or quasi-suspect and so not subject to strict or intermediate scrutiny.  The Cook precedent remains binding in the First Circuit until the Supreme Court overrules or undermines it or until the First Circuit Court of Appeals sits “en banc” (with all of its members participating instead of the usual panels of three judges that routinely hear appeals) and overrules it.

So the mere fact that DOMA discriminates against lesbigay persons was not enough to subject DOMA to more judicial scrutiny than rational basis review, which, as I have said, is characteristically quite deferential.  Instead, the court took a creative approach that relied on a combination of two factors to establish the propriety of meaningful judicial review (instead of the “roll over and play dead” approach often deployed under the rubric of rational basis review).  “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications[,]” the court reasoned, and “in areas where state regulation has traditionally governed, the [Supreme] Court may require that the federal government interest in intervention be shown with special clarity.”

The Court of Appeals was correct that “the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.”  The court was also correct that “[s]everal Justices have remarked on this”; the Court of Appeals might have added Justice O’Connor in her concurring opinion in Lawrence v. Texas.  But the Supreme Court as a whole has to date refused to acknowledge that it has used rational basis review two ways, “in its minimalist form” as the Court of Appeals put it and in a more searching form sometimes described by commentators as “rational basis with bite.”  Indeed, one of the three Supreme Court cases relied upon by the Court of Appeals, City of Cleburne v. Cleburne Living Center (1983), was later characterized by a Supreme court majority as “[a]pplying the basic principles of rationality review” and holding that a law discriminating against people then described as mentally retarded “incurs only the minimum ‘rational-basis’ review applicable to general social and economic legislation.” (Board of Trustees of University of Alabama v. Garrett (2001))

The Court of Appeals was therefore prudent in Massachusetts to look beyond prejudice against lesbigay people in justifying its “closer than usual review” of DOMA’s constitutionality.  This is especially true in light of the court’s somewhat gratuitous rejection of the argument that DOMA’s “dominant purpose was hostility to homosexuality”; the courts in Golinsky and Dragovich concluded otherwise, and the First Circuit did not need either to embrace or to reject their view of DOMA’s purpose(s) to reach its conclusions.

Where the court turned was to federalism.  In line with arguments I have previously sketched (here, published version here), the court rejected the argument that the federal government categorically lacked authority to regulate in the area of marriage, which states have long regulated.  It instead treated the historical dominance of the states in marriage regulation as a factor that, in combination with DOMA’s burdens falling on a historically marginalized group, warranted the court in looking carefully at the law’s proffered justifications.  “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”  The Court relied on cases about the extent of Congress’s authority under the Commerce Clause for its conclusion that this kind of federalism concern can heighten equal protection scrutiny of a law such as DOMA. 

Since Massachusetts is a case about equal protection constraints on government action, not the boundaries of Congress’s commerce power, the Court of Appeals might have also and perhaps more directly relied on Plyler v. Doe (1982), a Supreme Court decision holding that Texas violated the equal protection rights of children who were undocumented aliens (not lawfully present in the U.S.) by denying them the free public education it provided citizen and lawfully present children.  Texas’s law did not discriminate on the basis of a suspect classification (since immigration status is neither wholly immutable nor generally irrelevant to proper legislative ends) nor deny these children a fundamental constitutional right (since the Court had previously held there was no such right to education).  Yet rather than apply minimal rational basis review, the Supreme Court concluded in Plyler that “the discrimination contained in [Texas’s law] can hardly be considered rational unless it furthers some substantial goal of the State”–and that it did not.  In striking down Texas’s discriminatory law, the Court emphasized that in our scheme of federalism, the national government is given plenary authority over immigration and naturalization, to the exclusion of state authority in most cases.  Texas’s assertion of authority regarding immigration status in contrast to prevailing traditional allocations of governmental power might be compared to the federal government’s similarly unusual assertion of authority with respect to marriage in DOMA.  Of course, Plyler was decided by a 5-4 vote on the Court, and its continued vitality as a precedent may be revealed when the Supreme Court decides on the constitutionality of Arizona’s SB 1070 in Arizona v. United States this month.  So the Court of Appeals may have exercised appropriate discretion in relying on more recent Commerce Clause decisions popular with the more conservative side of the Court over Plyler.

Edie Windsor & her legal team, Photo: ACLU

The most recent judicial defeat for DOMA came the following week from a federal trial court in New York in an ACLU case, Windsor v. United States (S.D.N.Y. June 6, 2012, hosted here).  [Disclosure: Although not involved in this litigation, I remain a member of the national board of directors and an elected General Counsel of the ACLU.  As always, the views expressed here are my own and not necessarily those of any individual or entity with whom or which I might be associated.]  Because of DOMA, the IRS refused to recognize Edie Windsor’s lawful marriage in Canada to her wife Thea Spyer; as a result, after Spyer’s death Windsor had to pay more than one third a million dollars in federal estate tax from which a married different-sex couple would have been exempt.  She sued, arguing that this application of OMA’s federal definition section violated her equal protection rights.  On June 6, the U.S. District Court agreed, holding DOMA unconstitutional under rational basis review.

The U.S. Court of Appeals for the Second Circuit, which includes the federal courts in New York, has not decided what level of equal protection scrutiny should apply when the government discriminates on the basis of sexual orientation.  With most of the other Courts of Appeals having decided on rational basis review, the trial court in Windsor was hesitant to hold heightened scrutiny appropriate.  Ultimately, however, the judge decided not to decide the question because DOMA failed even conventional rational basis review (and thus the court said it was relieved even from deciding whether to apply a more searching form of review as the Court of Appeals did in the Massachusetts decision the week before).

Since the Obama administration has refused to defend DOMA since concluding it was unconstitutional, the defenses of the law are being mounted by private legal counsel hired by the House of Representatives’ Bipartisan Legal Advisory Group (voting on a part-line basis, 3 Repulicans in favor vs. 2 Democrats against).  The arguments in Windsor are the same as the ones in prior decisions, and the district court’s reasoning rejecting them are familiar as well, with the opinion quoting or citing all three decisions addressed above.

With so many judges across the country demonstrating that reason need not leave the courthouse when rational basis review comes in, the writing may be on the wall for DOMA’s discriminatory federal “definition” of marriage.  Federal litigation in other Circuits or on appeal from some of the trial court decisions could go the other way and uphold DOMA.  And of course it is difficult to predict what the Supreme Court will do.  But after several years of judicial passivity in the face of DOMA, this dramatic pattern of invalidations from sea to sea bodes well for justice being done. 


“That’s what my heart yearns for now.”


[edited for typography 7:01 PDT 20120614]