A unanimous three-judge panel of the United States Court of Appeals for the 1st Circuit, based in Boston, ruled on May 31 that Section 3 of the federal Defense of Marriage Act violates the 5th Amendment of the United States Constitution.
The ruling on consolidated appeals in cases brought by Gay & Lesbian Advocates & Defenders (Gill v. Office of Personnel Management) and the Commonwealth of Massachusetts (Commonwealth v. U.S. Department of Health and Human Services) concluded, "Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."
Recognizing the reality of the situation, however, the court anticipated that the Bipartisan Legal Advisory Group of the House of Representatives, an intervening defendant and the only party arguing that Section 3 is constitutional, will seek Supreme Court review, so the court stayed its decision pending such review. A petition to review a decision striking down a federal statute would almost certainly be granted by the Supreme Court. The case would be argued during the Court's term beginning October 2012, with a decision rendered by June 2013.
Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, No. 10-2204; Hara, Gill, & Toney v. Office of Personnel Management, Nos. 10-2207 & 10-2214.
The case did not require the court to decide whether same-sex couples have a constitutional right to marry. Rather, the issue before the court was whether Congress could adopt a general definition of marriage for all purposes of federal law that would exclude a large number of same-sex couples who had married under the laws of those states that authorize such marriages. U.S. District Judge Joseph L. Tauro had ruled in 2010 that there was no rational justification for what Congress had done, but since his ruling did not involve any contested facts, just legal conclusions, it was subject to de novo review by the 1st Circuit panel.
Congress and President William J. Clinton enacted the Defense of Marriage Act in 1996 in response to the possibility that the courts in Hawaii would require that state to allow same-sex marriages in pending litigation. Section 2 of DOMA purports to relieve states of any constitutional obligation to recognize same-sex marriages concluded in other states. Section 3, which is the focus of this decision, defines "marriage" for all purposes of federal law, as "a legal union between one man and one woman as husband and wife," and defines "spouse" as "a person of the opposite sex who is a husband or a wife."
Writing for the 1st Circuit panel, Circuit Judge Michael Boudin, who was appointed to the court by President George H.W. Bush, noted that Section 3 "affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases," he observed, "the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriages. The number of couples thus affected is estimated at more than 100,000. Further, DOMA has potentially serious adverse consequences" for those states "that choose to legalize same-sex marriages."
The key legal issue for the court was whether Section 3 should be evaluated using the traditional "rational basis" test, or whether some more demanding form of judicial review should be used. Judge Tauro had concluded that Section 3 failed to survive the traditional test, but the court of appeals disagreed. After describing the traditional test, which is very deferential to the political branches, presumes constitutionality, and upholds a law if there is any hypothetical non-discriminatory justification for it, Judge Boudin wrote that the plaintiffs "cannot prevail" under that test.
"Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments," he wrote. "This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government." Under the traditional undemanding rational basis test, the issue is what Congress could have believed when it passed the statute, so this rationale would serve.
But, said the court, the traditional rational basis test is not the appropriate test for this case. On the other hand, the court said that it was bound by 1st Circuit precedents not to use the "intermediate" or "heightened" scrutiny test that is applied in sex discrimination cases, because a prior panel of the court had rejected such an approach in Cook v. Gates, 528 F.3d 42 (2008), a decision that rejected a constitutional challenge to the "don't ask, don't tell" military policy, relying on the failure of the Supreme Court to identify "sexual orientation" as a "suspect classification" in its 1996 decision in Romer v. Evans, the Colorado Amendment 2 case. "Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer — a case that could readily have been disposed by such a demarche," commented Boudin. "That such a classification could overturn marriage laws in a huge majority of individual states underscores the implication."
However, the court ruled, traditional rational basis review is not the only alternative to intermediate or heightened scrutiny. The court observed that the Supreme Court has "several times struck down state or local enactments without invoking any suspect classification. In each," wrote Boudin, "the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions — not classic rational basis review — that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs."
The court identified three prior decisions as significant. In U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the Supreme Court struck down a provision of the food stamp program that excluded households containing unrelated adults, based on legislative history showing that this restriction was motivated by a "bare congressional desire to harm a politically unpopular group," "hippies" living together communally. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the Court struck down a local zoning law enacted to keep a group home for mentally disabled adults out of a particular area, finding that the provision was adopted based on "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding." Finally, the court pointed to Romer v. Evans, 517 U.S. 620 (1996), in which the Court struck down a Colorado constitutional amendment which prohibited any "regulation to protect homosexuals from discrimination," finding that it was a "status-based enactment divorced from any factual context from which we could discern a relationship to a legitimate state interest."
While not saying that it was engaging in some new level of judicial review, in these cases "the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered." In other words, the Supreme Court was applying a flexible approach to equal protection, not based on categorizations or labels, but rather on an approach that was "sensitive to the circumstances of the case and not dependent entirely on abstract categorizations."
What the Supreme Court cases had in common was "the historic patterns of disadvantage suffered by the group adversely affected by the statute," and here, both Romer and the 2003 Texas sodomy case, Lawrence v. Texas, had noted that "gays and lesbians have long been the subject of discrimination." Given such a history, the Court would undertake "a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review."
Under such an approach, Section 3 would not survive judicial review. The court found that the burdens it imposes on same-sex couples are "comparable to those the Court found substantial" in these leading cases. Thus the court found that "the extreme deference accorded to ordinary economic legislation. . . would not be extended to DOMA by the Supreme Court." In addition, the Commonwealth of Massachusetts suit introduced the complicating factor of federalism into this case, which the court found also justified a more demanding form of judicial review than "classic" rational basis review, since Congress was intruding into the sphere of domestic relations law which has traditionally been seen as a state function.
The court concluded that Judge Tauro erred in finding Section 3 unconstitutional under the 10th Amendment or the Spending Clause of the Constitution, finding that the Supreme Court's application of those provisions had been reserved to cases where Congress sought to interfere with state programs. However, wrote Judge Boudin, "the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."
Looking then at the justifications advanced for Section 3, the court quickly discounted the idea that "preserving scarce government resources" could stand up as a rationale to any serious inquiry. "Where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction," since such a group "has historically been less able to protect itself through the political process."
As to the idea that Section 3 was enacted "to support child-rearing in the context of stable marriage," the court agreed with Judge Tauro that this was not rational. DOMA would "not affect the gender choices of those seeking marriage," the court pointed out, noting the "lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage."
One purpose articulated by Congress in 1996 was to express "moral disapproval of homosexuality." This is no longer a valid basis for legislation, in light of the Supreme Court's ruling in Lawrence v. Texas, which specifically overruled Bowers v. Hardwick on this very point. In Bowers, the Supreme Court held that the Georgia legislature's moral disapproval of homosexuality was a sufficient basis to reject a constitutional challenge to that state's sodomy law. In Lawrence, the Supreme Court said that Bowers was "wrong when it was decided."
The court also addressed a "new" rationale that had been argued by the Justice Department before Judge Tauro in 2010: that "faced with a prospective change in state marriage laws, Congress was entitled to 'freeze' the situation and reflect." The court would not credit this as a justification, pointing out that DOMA "was not framed as a temporary time-out." As to the fears expressed in Congress that state judges would "impose" same-sex marriage on a reluctant electorate, the court pointed out that states have various mechanisms to deal with decisions by their own judiciary, including "readily amended constitutions" and methods of removing or denying re-election to judges, and thus did not need any assistance from Congress on this score.
"We conclude, without resort to suspect classifications," wrote Boudin, "that the rationales offered do not provide adequate support for Section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test."
Boudin pointed out that the court was not relying on another argument that the plaintiffs had made, that DOMA's "hidden but dominant purpose was hostility to homosexuality," pointing out that comments by individual legislators should not be attributed to everybody who had voted for the statute, in light of its broad bipartisan support in 1996. "Traditions are the glue that holds society together," he wrote, "and many of our own traditions rest largely on belief and familiarity — not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held." However, "Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern."
In a brief section of the opinion, the court noted the litigation before the Federal Circuit of co-plaintiff Dean Hara's continuing suit seeking surviving spouse health coverage based on his marriage to the late Gerry Studds, a member of the House of Representatives to whom Hara was married after Studds' service in Congress. While that case has been on hold pending this ruling from the 1st Circuit, it involves specific statutory issues that have still to be resolved in the Federal Circuit, and the court left that case to play itself out.
The other judges on the panel were Chief Judge Sandra L. Lynch, who was appointed by Bill Clinton, and Juan R. Torruella, who was appointed by Ronald Reagan. Thus, interestingly, the majority of the three-judge panel was appointed by Republican presidents.