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The Defense of Marriage Act (DOMA) Takes Another Bullet: How Can It Survive?

Another federal judge has now ruled that the provision of the Defense of Marriage Act (DOMA) that precludes recognition of same-sex marriage for any federal-law purpose is unconstitutional.  This provision of DOMA has taken several bullets in the last year, but the ruling in Pedersen v. OPM is even more damaging, as it carefully refutes every conceivable argument made in defense of the law, and identifies multiple theories on which it could be invalidated.

The Beginning of DOMA

Congress enacted DOMA in 1996, with little deliberation, in anticipation that Hawaii, and perhaps other states, would soon legalize same-sex marriage.  DOMA passed both houses of Congress by a wide margin—342-to-67 in the House, and 85-to-14 in the Senate.  President Bill Clinton signed it into law.

DOMA does two things.  Section Two of the Act purports to give states the right to refuse recognition to same-sex marriages that have been celebrated in other states.  And, Section Three, which is the subject of Pedersen and several other recent rulings, provides that, for any federal-law purpose, the word “marriage” means only a legal union between one man and one woman, and a “spouse” refers only to someone of the opposite sex.

DOMA was thus an effort to “defend” traditional marriage against the potential legalization of gay marriage in Hawaii, and in any other state that might see fit to legalize it.  The defense was two-fold: (1) DOMA allowed states to avoid compelled recognition of same-sex marriages celebrated in other states (as set forth in Section Two); and (2) DOMA allowed the federal government to ignore same-sex marriages celebrated in any American state, or anywhere abroad (as set forth in Section Three).

The Havoc DOMA Wrought

Hawaii, the catalyst for DOMA, never did legalize same-sex marriage.  But Massachusetts did, in 2004, and it was then followed by several other states over the subsequent eight years leading up to the present.  And, once some states and foreign jurisdictions began to authorize same-sex marriage, the federal-law provision of DOMA began to do its dirty work.

Section Three means that the members of a same-sex couple, despite being legally married in the state or country where they were wed, are not deemed married for purposes of Social Security, federal estate and income taxation, immigration, Medicaid, veteran’s benefits, and so on.  Section Three thus puts these couples in an unusual conundrum where their family status differs in a crucial way depending on the context.  It is unusual because Congress typically defers to state-law definitions of family status when crafting and enforcing federal laws, rather than adopting its own.

DOMA has an incredibly broad sweep because of the many federal laws that turn on marital status.  In Pedersen v. OPM, for example, the plaintiffs were same-sex couples who had legally married in Connecticut, New Hampshire, or Vermont and were denied benefits under five different federal statutes and regulatory schemes. The benefits of which DOMA deprived them related to family leave, health insurance, Social Security benefits, retirement, and death.  And those five benefit schemes, the Pedersen court noted, represent “merely a brief sampling of the myriad federal laws and regulations impacted by DOMA.”

The Beginning of the End of DOMA

As more couples began to encounter problems created by Section Three of DOMA, many lawsuits were filed.  Several of these lawsuits have resulted in a federal-court ruling that DOMA’s Section Three is unconstitutional, and several more such suits are pending.  In addition to the flurry of litigation over this provision, Section Three—and DOMA as a whole—have also been attacked from the legislative and executive branches of the federal government as well.

A bill to repeal DOMA, the Respect for Marriage Act, is pending in the U.S. Senate.  (I have discussed this proposed legislation here and here.)

Moreover, the Obama Administration declared in the “Holder Memo,” in February 2011, that it will no longer defend Section Three challenges in court, at least in jurisdictions where there is no binding precedent regarding the appropriate level of scrutiny for sexual-orientation classifications.  (In most pending DOMA challenges, including Pedersen, the law is now defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), which is comprised of certain members of Congress who support DOMA.)  The federal government has also weakened DOMA by allowing exceptions to the law to be made in specific administrative situations, or in individual cases.

In just the past six months, four federal courts have ruled that Section Three of DOMA is unconstitutional.  In Golinski v. OPM, the plaintiff sued because her employer, the federal government, refused to add her new wife to the health insurance plan, which generally covered spouses.  This litigation was notable because not only did the Department of Justice refuse to defend DOMA, just as it had promised in the Holder Memo, but it also filed a brief arguing affirmatively that Section Three is unconstitutional because it discriminates against gays and lesbians.

A federal district court in California agreed, ruling in March 2012 that sexual orientation classifications merit heightened scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause.  (Because DOMA is a federal, rather than a state, law, the Fifth, rather than the Fourteenth, Amendment is the applicable constitutional provision for both equal protection and due process challenges.)  The California-based federal district court found the traditional test for heightened scrutiny to have been easily met, and then went on to conclude that the government’s justifications for the law were insufficient under heightened scrutiny.  The court also concluded that heightened scrutiny wasn’t necessary—Section Three, it reasoned, would fail even the lowest level of judicial scrutiny, rational basis review.  (I discuss this ruling in detail here.)

Just a few months later, two more federal courts ruled similarly in Section Three cases.  In Windsor v. U.S., a federal district court in New York invalidated the application of DOMA to an estate tax return.  (Spousal transfers are tax-free; most other transfers are not.)  The judge declined to adopt heightened scrutiny for sexual orientation classifications, but applied a toothier version of rational basis review when examining the government’s proffered justifications.  Noting the utter lack of connection between any legitimate federal interest and a law that singles out same-sex couples for adverse treatment, the judge invalidated the law and ordered a $350,000 refund of estate taxes.

In Commonwealth v. U.S. Dep’t of Health and Human Services, the U.S. Court of Appeals for the First Circuit also held that Section Three runs afoul of equal protection principles.  (I discuss the rulings in Windsor and Commonwealth in detail here.)  This case involved the consolidated appeal of two cases in which a lower federal court had invalidated Section Three of DOMA.  In the appellate ruling, the court did not, despite the plaintiff’s urging, apply heightened scrutiny given that the U.S. Supreme Court has not yet taken that step (despite having had opportunities to do so.)  As in Windsor, the court in Commonwealth applied a strict form of rational basis review, in which it required that “the federal government interest in intervention be shown with special clarity,” and that the justifications offset the burdens imposed.  Under this somewhat unconventional test, the appellate court ruled that Section Three was unconstitutional.

The Endgame: How Pedersen v. OPM Advances the Ball

Last week, on July 31, 2012, a federal district court in Connecticut joined the growing chorus trumpeting DOMA’s unconstitutionality.  Notably, the judge, Vanessa Bryant, is a George W. Bush appointee.  Pedersen advances the endgame not only by ruling, as several courts now have, that Section Three violates equal protection doctrine, but also by suggesting that it might violate due process protection for the fundamental right to marry as well.

In its discussion of the appropriate level of judicial scrutiny that ought to be applied to DOMA, the Pedersen court gives BLAG a thrashing.  It rejects and finds unpersuasive virtually every aspect of every argument made in defense of DOMA.  It chastises BLAG for relying on out-of-date authority, for taking historical conclusions out of context, and for ignoring or underplaying the very significant history of discrimination suffered by gays and lesbians in this country.  It ultimately concludes that “homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.”

Despite this conclusion, however, the court, like the court in Golinski, also held that Section Three could not survive even the most lenient form of scrutiny.  Even rational basis review, the court explained, is not “indiscriminately deferential” and still requires a showing of some reasonable connection “between the classification adopted and the objective to be attained.”  Careful to refrain from scrutinizing ‘the wisdom, fairness, or logic of legislative choices,” the court simply found it to be irrational for Congress to believe that denying federal recognition to already-legalized same-sex marriages would do anything to promote any of its proffered justifications—to “employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;” “to protect the public fisc;” “to maintain consistency and uniformity with regard to eligibility for federal benefits;” “to avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage;” and “to recognize an institution designed to ensure that children have parents of both sexes.”  How does Section Three serve any of these objectives? The court concluded that it doesn’t, and thus further concluded that the law fails to pass constitutional muster even under the most deferential form of review.

In the midst of its equal protection analysis, the Pedersen court notes in a footnote that it does not reach the question whether Section Three violates due process protection for the right to marry, because the court invalidates the provision on other grounds.  However, it notes, “the Supreme Court has recognized the existence of a fundamental right to marry” and the analysis of it “has not depended upon the characteristics of the spouse.”  Most damning to Section Three, the court further observes that

the Supreme Court’s recognition in [Lawrence v. Texas] that the ‘right of homosexual adults to engage in intimate, consensual conduct’ is also an essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation.  Although not the subject of this Court’s opinion nor the Parties’ briefing, this Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation.

None of the DOMA rulings so far rest on this basis, but it may well be the most appealing argument that is raised when/if the issue reaches the U.S. Supreme Court.  The Court has avoided holding that sexual- orientation classifications merit heightened scrutiny, even in cases in which it ultimately struck down such classifications as unconstitutional.  But it has reached out more broadly, under the Due Process Clause, to find protection for same-sex relationships, most notably in Lawrence v. Texas.

The End of DOMA?

There is, of course, no crystal ball we can consult to divine DOMA’s fate, but it’s hard to predict any future other than one in which DOMA will disappear—sooner, rather than later.  Perhaps Congress will repeal DOMA through the Respect for Marriage Act.  Perhaps the Executive Branch will stop enforcing it altogether.  Perhaps the Supreme Court will ratify the growing consensus among lower federal courts that Section Three simply cannot survive constitutional scrutiny under equal protection principles, due process principles, or both.  In the meantime, however, the tens of thousands of same-sex married couples are still being harmed by the inconsistent legal treatment of their unions, an insult and inconvenience that they should not have to endure as part of legally authorized family units.

Joanna L. GrossmanJoanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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  • http://www.facebook.com/alexis.kirtland Alexis Kirtland

    If DOMA is struck down by the Supreme Court, what are your thoughts about the impact of bi-national couples who cannot sponsor their foreign spouse for a green card?

  • Sarah Hudson

    Marriage
    equality is hopefully getting closer, but currently DOMA is seriously hurting
    my family because my wife has been denied health benefits under my family
    health plan. Please take a look and
    sign my petition at:

    http://www.change.org/petitions/shirley-patterson-federal-employee-insurance-operations-grant-all-legally-married-federal-employees-equal-benefits?share_id=aijrmwNxUZ

  • Akshay

    Joanna,

    Thanks for writing such a gr8 article, fingers crossed. I hope DOMA get repealed soon and we can get all 1138 rights.

    Akshay

  • Wayne Peterson

    ….and the GOP House continues to spend hundreds of thousands of your tax dollars trying pitifully to defend this pig! Once cast aside, Doma should be memorialized as the bigotry it is and the names of every Congress member who voted for it should be inscribed in granite, so their grandchildren may spit upon their names!

  • Kate O’Hanlan, MD

    I think there is a more than sufficient evidence to require heightened scrutiny:
    Sexual orientation and gender identity are like handedness or skin color: biological, unchangeable, innocent. We used to think red haired people, people of color, or left-handers were potentially evil (recall latin origin of the word “sinister”: left!). Science teaches us to change our thinking.
    Research reveals variable hormonal levels in the first twelve weeks of pregnancy permanently affect child’s neural circuitry for sexual orientation and gender identity to express on a spectrum between straight and gay, same or opposite gender.

    A little extra testosterone secreted from the adrenals during early pregnancy affects the baby girls’ brains causing nearly half to be lesbian, a tenth to be transgender. Also, a girl twin baby simply sharing the womb with a boy co-twin, in which some of his testosterone from his amniotic fluid gets into her blood, causes about one fifth of girl co-twins to be lesbian. These girls also have the bone structure and physical coordination of boys, so they are good in sports, and thus the stereotype.

    The opposite is also true: a bit less testosterone than usual in a boy’s blood during early pregnancy can make him gay or transgender. If a boy’s mother has delivered many older brothers before him, which caused her to make blocking antibody to their male proteins, then the youngest brother receives lower levels of testosterone in his blood, resulting in about one fifth of boys with many older brothers being gay. These boys have the physiology, gait, phonation and verbal skills and excel in language and visual arts, slightly more like girls, and thus the stereotype.

    Most homosexuals and most heterosexuals will say that they had no choice to be how they are because they were born on the far ends of the spectrum. They firmly claim they were “born that way.” But, some “straight” and some “gay” folks feel it WAS and IS definitely a choice for them because they were born closer to the middle of the biological spectrum between straight and gay: they are bisexual. Their orientations don’t change from straight to gay, they simply have brain wiring that attracts them to both, and lets them choose partners of either gender, but their orientation is still bisexual. All orientation is hard-wired prenatally and none can change it. It is all biological and innocent, and not contagious or changeable.

    Everybody has an opinion about same-sex marriage, but what does the scientific research reveal about the health and welfare of children and families in same-sex marriages?????

    Rather than make gay rights a popularity contest, lets ask America’s best experts on family, mental health and children what the research shows is best for all American families. From the American Psychological Association: homosexuality is a normal sexual orientation; homosexual relationships are normal relationships.
    The American Academy of Pediatrics, American Psychological Association, American Psychiatric Association, American Association of Child and Adolescent Psychiatrists, National Association of Social Workers, Child Welfare League of America, North American Council on Adoptable Children have endorsed civil marriage/adoption for same-sex couples because marriage strengthens mental, physical health and longevity of couples, and having two parents (of any gender) provides greater health, legal/financial security for children. Research confirms that children develop perfectly normally. Even the American Academy of Anthropology has issued a policy statement that says access to civil marriage by same-sex couples will not harm our social order. Visit the websites of these non-partisan, national professional and certifying associations for their policy statements.
    If we don’t listen to professional experts on national family health and welfare, then we are simply voting our religious beliefs or personal bias into state and federal laws, and harming the families of gay and lesbian couples, especially those with children.

  • David

    The Defense of Marriage Act is all about the definition of marriage. I suggest we call same-sex marriage something else like for example: same-sex combination. This would differentiate between traditional marriage and same-sex marriage. Both categories of couples could be provided the same benefits under law with regard to the tax laws.

  • http://ohanlan.com/ Kate O’Hanlan, MD

    Does it not make a difference regarding strict scrutiny that traits such as sexual orientation and gender identity are precisely like handedness, hair color or skin color: biological, unchangeable, innocent. We used to think people of different races or red-headed people, or left-handed was evil, (as in “sinister” which comes from Latin for “left”)

    Research reveals variable hormonal levels in the first twelve weeks of pregnancy permanently affect child’s neural circuitry for sexual orientation and gender identity to express on a spectrum between straight and gay, same or opposite gender. A little extra testosterone secreted from the adrenals during early pregnancy affects the baby girls’ brains causing nearly half to be lesbian, a tenth to be transgender. Also, a girl twin baby simply sharing the womb with a boy co-twin, in which some of his testosterone from his amniotic fluid gets into her blood, causes about one fifth of girl co-twins to be lesbian. These girls also have the bone structure and physical coordination of boys, so they are good in sports, and thus the stereotype.
    The opposite is also true: a bit less testosterone than usual in a boy’s blood during early pregnancy can make him gay or transgender. If a boy’s mother has delivered many older brothers before him, which caused her to make blocking antibody to his male proteins, resulting in about one fifth of boys with many older brothers being gay. Many of these boys have phonation, gait, physiology and linguistic and visual arts skills slightly more like girls, and thus the stereotype.
    Most homosexuals and most heterosexuals believe that they had no choice to be how they are because they were born on the far ends of the spectrum. They can firmly claim they were “born that way.” But, for some straight and gay folks, it WAS and IS definitely a choice for them because they were born closer to the middle of the biological spectrum between straight and gay: they are simply bisexual. Their orientations don’t change from straight to gay when they date different genders, they simply have brain wiring that attracts them to both. All orientations are hard-wired prenatally and none can change it. It is all biological and innocent, and not contagious or changeable.
    If you had the references to this evidence, would that not warrant strict scrutiny???

  • http://twitter.com/Maggie4NoH8 Maggie 4NoH8

    Thank you Ms. Grossman – I follow this subject closely, and found your article very nicely tied the multiple cases together, and offered (in layman’s terms) what has happened to date.

  • Brigid Anderson

    Just bought your Inside the Castle book and reading with great interest (amazingly well-written and, at the same time, both scholarly and so entertaining)! I’d recommend it to anyone interested in the history of the family in America. Thanks for explaining, in the book, the reasons why the Full Faith and Credit argument is so hard with respect to state recognition of same-sex marriages from other states. Here’s a related question for you: If DOMA goes away, what does the federal standard become for determining whether a same-sex marriage will be recognized for federal purposes? It is enough that a marriage is valid in any state or must it be valid in the state in which the couple resides or (I’m an employee benefits lawyer here) in the state in which the employer providing them health coverage does business or has offices? (Are there other choices?) This is a potentially big mess for employers doing business in several states and, of course, an equal problem for same-sex spouses who travel to states that do not recognize their marriages (in the event that this affects their status under federal law as well). Regards, Brigid

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