Earlier this month, a federal district court judge in Massachusetts issued two opinions, in which for different, but related reasons he invalidated a key provision of the Defense of Marriage Act of 1996 ("DOMA") as applied to the plaintiffs before the court.
Section 3 of DOMA provides that marriage is defined as the union between a man and a woman for all federal-law purposes -- of which there are 1,138. By defining marriage at all, rather than deferring to each state's definition of marriage, Congress certainly departed from its past tradition. But was the departure constitutionally invalid? That is the question that has been explored (and answered "Yes") in both Gill v. Office of Personnel Management and Commonwealth v. U.S. Department of Health and Human Services.
In Part One of this two-part series, I will describe DOMA and explain the reasoning that led Judge Joseph L. Tauro, in Gill , to invalidate section 3 as applied to the plaintiffs in that case.
In Part Two -- appearing on FindLaw tomorrow, Tuesday, July 20 -- I will discuss the ruling in Commonwealth and consider the marriage-regulation history that is so central to the court's reasoning in both cases.
Where the Story Begins: The Defense of Marriage Act of 1996 (DOMA)
In a way, the story here begins fourteen years ago. In 1996, it seemed very likely that Hawaii was about to become the first state in the union to legalize same-sex marriage. In fact, Massachusetts took those honors in 2004, followed several years later by four additional states and the District of Columbia. But, for a time, all eyes were on Hawaii because its highest court had ruled, in Baehr v. Lewin, that a ban on same-sex marriage was a form of sex discrimination that warranted the highest form of judicial scrutiny (and, presumably, would be invalidated once that scrutiny was applied).
Out of fear of the effects Hawaii's anticipated ruling might have on other states and on the federal government, Congress passed the Defense of Marriage Act of 1996 (DOMA) in haste, just a few weeks before the 1996 presidential election. DOMA was pushed through quickly in anticipation of Hawaii's legalization of same-sex marriage, and the legislative history of DOMA reveals an intense focus on confining such marriages to the state of Hawaii alone.
DOMA's scheme for confining same-sex marriage to Hawaii (or to any other state that might eventually legalize it) was twofold. Section Two of DOMA purports to give states the right to refuse recognition to same-sex marriages that have been celebrated in other states -- while, at the same time, leaving open the possibility that each state might permit same-sex marriages within its own borders. Second, and more pertinent here, Section Three of DOMA provides that, for any federal-law purpose, "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 wife."
The Claim in Gill v. Office of Personnel Management : The Intent of the DOMA Drafters
The plaintiffs in Gill -- one of the Massachusetts federal district court cases before Judge Tauro -- are same-sex couples who legally married in Massachusetts, and yet were each denied some marriage-based entitlement by the federal government. Among the entitlements denied were spousal health benefits for federal employees, retirement and survivor benefits under the Social Security system, and joint filing status with the IRS. In each instance, the married couple presented satisfactory proof of marriage to the federal agency in question -- and in each instance, they were told, nevertheless, that Section Three of DOMA prevents the federal government from giving effect to the marriage.
The various agencies were no doubt applying Section Three of DOMA exactly as Congress wrote and intended it. Under DOMA, these same-sex marriages were to be ignored under federal law, even though each of the applicable federal statutes otherwise defers to state law in determining marital status. (This deference is a common feature of federal statutes, which routinely rely on state law to supply definitions or substantive content. This means that residents of different states do not necessarily have the same entitlements under federal law.)
The Social Security laws, for example, grant survivors' benefits to dependent children when a wage-earning parent dies if and only if the state in which the wage-earner lived would itself recognize a parent-child relationship. Thus, to take one unusual example, a child conceived after the death of either parent (through the use of frozen sperm, eggs, or embryos) may or may not be entitled to federal Social Security benefits as a surviving child of the deceased parent, depending on the state in which the wage-earner resided. (I have written about this particular issue here and here.)
State law in other contexts also supplies content for federal-law causes of action -- such as those brought under Section 1981, which bans race discrimination in contracting -- including those governing employment relationships. As I have written about previously, state law dictates the statute of limitations for Section 1981 actions, and it also determines whether an at-will employment relationship is considered a "contract" at all within the meaning of the statute.
So the only question in Gill is whether DOMA itself is valid or whether, as the plaintiffs contended, it violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution.
The Rational-Basis Test, and the Interests the Federal Government Claimed that DOMA Serves
In ruling for the plaintiffs -- by holding that Section Three of DOMA was invalid as applied to them -- Judge Tauro concluded that the law did not pass even the most deferential form of judicial review: the rational-basis test. Under that test, a law must be upheld if it bears a rational relationship to a legitimate governmental objective.
A report of the House of Representatives identifies four interests that the federal government sought to advance through DOMA: (1) the interest in encouraging responsible procreation and child-bearing; (2) the interest in defending and nurturing the institution of traditional heterosexual marriage; (3) the interest in defending traditional notions of morality; and (4) the interest in preserving scarce resources.
In litigating this case, however, the federal government essentially disavowed these reasons. And even if it had stood by them, Judge Tauro ruled that none was sufficiently served by DOMA to support the constitutionality of DOMA. Regarding the claimed interest in encouraging responsible procreation and child-bearing, for instance, Judge Tauro noted a consensus that children are no worse off when raised by gay and lesbian parents than by heterosexual parents.
Judge Tauro also pointed out the obvious, in response to the second claimed interest, in defending and nurturing heterosexual marriage: Giving federal-law recognition to same-sex marriages had no conceivable effect on heterosexual marriages. Denying recognition would make it no more likely that gays and lesbians would -- despite their orientation -- choose to marry people of the opposite sex, nor would it threaten the security of other people's heterosexual marriages. (And if Congress sought to deny recognition "in order to make heterosexual marriage more valuable," Judge Tauro reasoned, this goal could not constitutionally be pursued only by punishing same-sex married couples.)
Judge Tauro noted that Congress could act to preserve scarce governmental resources, but also noted that -- given that Congress expressly rejected an amendment to DOMA mandating budget analysis -- this does not seem to be a powerful justification for this particular statute. Judge Tauro also noted that the Congressional Budget Office had concluded, in a 2004 report, that extending federal recognition to same-sex marriages would actually save the government money.
In place of these four original objectives, the Obama Justice Department, charged with defending DOMA, in this case articulated two new reasons that it argued supported DOMA. First, it argued that DOMA allowed the federal government to preserve the status quo as of 1996 -- one in which there existed no state-sanctioned same-sex marriage and thus, the federal government did not sanction same-sex marriage either. Consistency in the distribution of marriage-based benefits was important, the Obama Justice Department argued. Second, the government asserted that DOMA is an "incremental response to a new social problem" that Congress may "employ in the face of a changing socio-political landscape."
As with the rationales that were originally given for DOMA, Judge Tauro found these two new proffered rationales to be insufficient as well. But here, the question he focused on was not whether Section Three of DOMA reasonably promotes the articulated interests, but whether the federal government is entitled to claim an interest in marriage law at all.
The Federal Government and Marriage: A History of Federal Abstention and State Power
Judge Tauro's opinion in Gill begins with the observation that there can be "no dispute that the subject of domestic relations is the exclusive province of the states." Specifically, the opinion points out, states have always regulated marriage -- determining who can marry, and under what circumstances. And there has historically been variability among the states, particularly during certain periods of history when states had stark disagreements about interracial marriage, marriage by minors, and marriage by those with certain physical and mental disabilities.
Through all these disagreements, the federal government continued to rely on state law for determinations of marital status. DOMA thus represents, according to Judge Tauro's opinion, "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. This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry."
In light of this history, the opinion concludes that the historical deference to the states on the regulation of marriage is a "long-recognized reality of the federalist system under which this country operates." Indeed, the opinion goes even further, to conclude that the "states alone are empowered to determine who is eligible to marry."
Judge Tauro also concludes that the federal government's longstanding abstention from marriage regulation undermines the government's assertion that DOMA serves to preserve the status quo as of 1996. While, at that time, no states recognized same-sex marriage, Judge Tauro points out that the status quo "at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law." Section Three thus did more to undermine, than to preserve, the status quo.
The Gill opinion also makes short work of the government's second "new" justification: the claim that DOMA is an incremental response to a new social problem. To the extent that the problem is state-to-state inconsistency in marriage-based entitlements, Judge Tauro reasons, DOMA creates more inconsistencies than it remedies, by distributing benefits differently to married couples based on the gender of the parties. Moreover, DOMA certainly makes the system more complicated, by requiring federal agencies to look beyond state-issued marriage licenses for proof of marital status that satisfies the requirements of DOMA.
And DOMA does little to rectify the problem of nationwide inconsistency, since marriage laws still remain somewhat variable state-to-state on many issues other than same-sex marriage. States differ with respect to age minimums and definitions of incest, for example, as well as to the validity of common-law marriage. Massachusetts, in addition to being one of relatively few states that allow same-sex couples to marry, is one of only two states that have no statutorily- prescribed age minimum for marriage, relying instead on the common-law rules allowing marriage with parental consent at age 12 for girls, and at age 14 for boys.
All told, Judge Tauro concluded that "the government's proffered rationales, past and current, are without 'footing in the realities of the subject addressed by [DOMA].'" And because these rationales are "clearly and manifestly implausible," Judge Tauro reasoned, the court must conclude that animus is the only possible explanation for the law. Because animus is not a legitimate governmental interest, Judge Tauro concluded, the law does not survive even the deferential rational-basis standard of review.
In Part Two of this series, appearing tomorrow on this site, I will describe the companion opinion in Commonwealth, and then consider the marriage law history that drives both the Gill and the Commonwealth opinions.