“Keep a tender distance/So we’ll both be free”
In a pair of lawsuits (Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services), the federal trial court in Boston held on July 8 that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional as applied to the plaintiffs. DOMA Section 3 defines “marriage” to exclude same-sex couples for purposes of much federal law. Seven same-sex couples married in the state and three surviving spouses who had been married there, represented by Gay and Lesbian Advocates and Defenders (GLAD), as well as Massachusetts itself, filed suit to challenge the exclusion of same-sex couples from specified federal programs: three federal health benefits programs; certain Social Security benefits based on marriage to a same-sex spouse; joint filing status with the IRS; a state cemetery grants program (regarding burial of eligible military veterans, their spouses, and their children); and Medicaid.
Federal district court judge Joseph Tauro ruled (opinion here on Scribd) (thanks, Joe Sudbay) that Section 3 is not within the power granted by the Constitution to Congress to spend for the general welfare (and to put strings or conditions on its spending) and violates the Tenth Amendment’s protection of state sovereignty. The court also held (opinion here on GLAD’s website) that Section 3 violates the Constitution’s guarantee of equal protection of the laws because it could not pass even the most deferential form of judicial scrutiny, rational basis review, because Section 3 lacked a rational relationship to a legitimate state purpose.
As in its defense of DOMA in litigation in California, the Obama Administration disavowed the justifications for DOMA reflected in the Congressional record. (This is not surprising, since the legislative reports and discussions on DOMA are rife with anti-lesbigay sentiments unlikely to qualify as even legitimate governmental purposes.) Instead, in the Tenth Amendment case brought by Massachusetts, the federal government argued that as applied to the cemetery grants and Medicaid programs, DOMA was a proper exercise of the power granted Congress by Article I of the Constitution to spend “for the common Defence and general Welfare of the United States.” This “Spending Clause” has long been understood to allow Congress to put conditions on its expenditures. Here, the Administration argued that limiting beneficiaries to different-sex married couples was a permissible condition on the challenged programs.
In a ruling that depended on its decision in the companion case brought by the same-sex couples and survivors, the district court held that DOMA is not a proper exercise of the conditional spending power. The Supreme Court’s case law makes clear that the conditions Congress attaches to its grant programs “may not be used to induce the States to engage in activities that would themselves be unconstitutional.” Because in the companion case the trial court held that DOMA Section 3 unconstitutionally discriminates against lesbigay people, the court held that the measure was not a permissible exercise of power under the Spending Clause.
The trial court also ruled that DOMA Section 3, as applied, violated the Tenth Amendment. The court very quickly concluded that DOMA “regulates the States as States” because of the very large economic hit Massachusetts would take from the federal government due to DOMA if Massachusetts treats married same-sex couples equally with married different-sex couples. Second, the court concluded that the authority to make marital status determinations is a core attribute of state sovereignty; the court based its ruling largely on a history of states (and not the federal government) deciding who may marry and a multitude of statements by the Supreme Court to the effect that “domestic relations” are a matter for state regulation. Third, the court concluded that DOMA seriously limits Massachusetts’s ability to govern itself; federal non-recognition of marriages of same-sex couples would, due to DOMA, costs Massachusetts millions of dollars if it complies with its own constitution and allows same-sex couples to marry and treats them equally with other married couples.
In the suit brought by the same-sex couples and surviving members of same-sex couples, Judge Tauro held that DOMA’s federal refusal to recognize married same-sex couples as married for purposes of the specific programs mentioned in the first paragraph of this blog entry violated the constitutional guarantee of equal protection of the laws imposed on the federal government by the Due Process Clause of the Fifth Amendment. Although the plaintiffs argued on a few different grounds that the constitutionality or unconstitutionality of DOMA should be analyzed under strict scrutiny (the most skeptical form of judicial review), the court determined that it need not decide whether those claims were right, for these applications of DOMA could not survive even rational basis review, the most deferential form of judicial scrutiny, which upholds challenged laws unless the plaintiffs can prove that the law does not bear even a rational relationship to a legitimate state interest.
The trial judge first quickly disposed of the reasons given in the House Report in support of DOMA when the law was adopted in 1996: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources. (The court addressed these because rational basis review requires rejection of any reasonably conceivable basis for the challenged law, not just consideration of the particular arguments offered by the government attorneys.) The court held that none of these arguments really could justify DOMA, that the Supreme Court’s decision in Lawrence v. Texas (2003) meant that particular views of “morality” couldn’t justify it, and that using DOMA to express dislike or a belief in the inferiority of lesbigay people was constitutionally impermissible.
The court then rejected the argument offered by Obama administration lawyers: basically, that DOMA was an effort to go slowly and preserve the status quo in the face of a widely contentious social debate in the states over same-sex marriage. Insisting that domestic relations are the exclusive preserve of the states (as the court had held in its Tenth Amendment reasoning), the court concluded that the federal government had no independent interest in generally defining who could marry. Because the federal government had historically and still follows state marital status determinations in almost all cases, and state marriage laws vary widely in whom they let marry, the court concluded that DOMA could not be justified by a federal interest in uniformity. And the status quo in 1996 when DOMA was adopted was that the federal government accepted state rules for marriage for purposes of federal laws depending on marital status. Finding married same-sex couples and married different-sex couples not distinguishable in any relevant way, the trial court concluded that DOMA’s discrimination against same-sex couples violates constitution equal protection principles. (Note that virtually none of this reasoning depended on the specific federal programs the exclusion from which the same-sex couples were challenging.)
