U.S. District Judge Vanessa L. Bryant (D. Conn.) ruled on July 31 that Section 3 of the Defense of Marriage Act (DOMA) violates the equal protection requirement of the 5th Amendment of the U.S. Constitution. Section 3 provides that the federal government will not recognize marriages of same-sex couples for any purpose of federal law. Judge Bryant became the fifth federal trial judge to declare Section 3 unconstitutional since the summer of 2010, following courts in Boston, San Francisco, and New York.
Judge Bryant was ruling in a lawsuit, Pedersen v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders (GLAD), a Boston-based LGBT public interest law firm, on behalf of six same-sex married couples who claimed to have been denied some right or benefit under federal law as a result of DOMA. Before the deadline for answering the complaint, the Justice Department announced that it deemed Section 3 unconstitutional and would no longer defend it, so the defense in this case is being carried on by former Solicitor General Paul Clement and his law firm, under contract with the Republican majority in the House of Representatives through the so-called "Bipartisan" Legal Advisory Group (BLAG).
Because Connecticut is in the 2nd Circuit, Judge Bryant was free to take on the question whether Section 3 should be subjected to heightened scrutiny as the Circuit hasn't decided the issue and, as she notes, neither has the Supreme Court. Judge Bryant devoted a substantial portion of her opinion to deciding whether a federal statute that discriminates against gay people should be subjected to "heightened scrutiny" because it disadvantages a "suspect class." If heightened scrutiny applies, the court would strike down the challenged law unless the government would show that it significantly advances an important governmental interest.
Applying the various criteria used by the Supreme Court to make such a determination, and wading through voluminous evidence presented by both sides, Judge Bryant concluded: "This Court finds 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." But then, after all this analytical effort (about 50 pages in an opinion that runs 104 pages), she continued, "the court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
So, what was that all about? Part of the problem is that the Justice Department (DOJ) has kept moving the bar on this issue. When DOJ was defending DOMA in GLAD's other case, Gill v. Office of Personnel Management, in the U.S. District Court in Boston, it was arguing that DOMA was constitutional under a rational basis analysis. It repeated this argument in its appeal to the 1st Circuit, until DOJ changed its position in response to GLAD's filing of this lawsuit in Connecticut and the ACLU's filing of the Windsor case in New York. DOJ's new position was that heightened scrutiny applied, and DOMA flunked heightened scrutiny. Then as the oral argument took place in the 1st Circuit in Gill, it appeared that DOJ was moving towards the view that DOMA might also flunk rational basis review, as the district court in Boston had ruled and as the 1st Circuit eventually ruled in that case.
In any event, all three parties – GLAD, DOJ, and BLAG – presented Judge Bryant with substantial evidence and argument about the issue of whether heightened scrutiny should be applied, so perhaps she felt an obligation to the parties to address the question. However, based on how she resolved the case, it looks as if 50 pages of her opinion were really unnecessary, although they make interesting reading.
Applying rational basis review, she came to the same conclusions as the judges who have preceded her over the past two years. There is a logical disconnect between the various arguments advanced to support DOMA and the effect of the statute itself. As it has in other cases, BLAG has argued both the points that DOJ had stopped arguing and the points that DOJ advanced in the Gill case in the District Court, but to no avail because they make little logical sense.
In 1996 same-sex marriage did not exist anywhere in the world, and the enactment of DOMA had everything to do with political pandering and nothing to do with anything that was real. There was a lawsuit pending in Hawaii, and in 1993the Hawaii Supreme Court had suggested that denying the right to marry to same-sex couples might violate the state constitution and returned the case to the trial court. A trial was scheduled for October 1996. By the time the trial judge ruled (in favor of same-sex marriage) in December 1996, DOMA had been preemptively enacted. But Hawaii's government and electorate reacted to the trial court decision by amending their state constitution to take the question of same-sex marriage away from the courts, and to this day same-sex couples can't marry in Hawaii (although as of now they can have civil unions). It wasn't until May 2004 that same-sex couples could marry anywhere in the U.S. — in Massachusetts — although some couples had married in Canada beginning the prior summer. So DOMA was enacted many years before it had any direct effect.
Although there was no real pressing need in 1996 to make federal policy on the issue of recognition of hypothetical same-sex marriages, Congress did not devote any substantial time to studying what impact Section 3 might have on the chance that sometime in the future same-sex couples could marry. Instead, there was lots of sloganeering, posturing, moralizing, and factually unsupported assertions about the interests of children. As Judge Bryant found, none of the reasons cited in the congressional committee reports or the ex-post-facto hypothesizing of the Justice Department in the Gill case could stand up to any serious examination. Children being raised by same-sex couples are disadvantaged by the refusal of the federal government to recognize their parents' marriages, nothing in DOMA acts to incentivize different-sex couples one way or the other on their reproductive activities, there is no evidence that recognizing same-sex marriages would have any effect on different-sex marriages, and the Supreme Court decisively rejected in 2003 the idea that legislative moral judgments about homosexuality can be used to justify statutory discrimination against gay people without violating the Constitution.
What is left, really, is the contention that the federal government needs to have uniform national standards for determining eligibility for federal benefits, and that recognizing same-sex marriages would put further strain on the deficit-plagued federal budget. Neither of those arguments really works, because there is variability among the states on eligibility for marriage for different-sex couples (issues of age and consanguinity), and the federal government has traditionally treated a couple as married if they are lawfully married under state law, despite such variations. Before the Supreme Court outlawed miscegenation laws, the federal government managed without any problem dealing with the phenomenon of some states that prohibited interracial marriages and other that allowed them. "Uniformity" only became an issue when it looked like some states would allow gay couples to marry, and the current system — requiring states and private sector actors to treat certain marriages as non-marriages if there is any federal nexus — actually imposes a regime of non-uniformity. In an amicus brief filed recently in one of the other pending DOMA cases, a group of major private sector employers points out that Section 3 imposes unnecessary costs on them, since they have to treat employees differently for benefits and tax purposes depending on whether they have a same-sex or different-sex spouse, and this is undoubtedly true of federal agency employers as well.
As far as "conserving the fisc" goes, the Congressional Budget Office calculated recently that if same-sex couples could marry everywhere in the United States, the federal government would enjoy a slight financial benefit in terms of tax revenue. (…As my husband and I discovered when we did our taxes together for the first time this year due to New York's recognition of our marriage for tax purposes; had we filed the dummy joint federal return that we had to prepare in order to calculate our state taxes, our federal tax obligation for our combined income would have been several thousand dollars higher than what we owed filing as single. Since New York doesn't impose a marriage penalty, our state and local taxes remained about the same.)
Judge Bryant concluded that there is no rational basis for the federal government to deny recognition to same-sex marriages, and such denial works a substantial hardship to married same-sex couples such as the plaintiffs, so she granted the plaintiffs' motion for summary judgment and denied BLAG's motion to dismiss the case.
In the course of deciding the opinion, she also rejected an argument by BLAG that those plaintiffs whose "standing" to challenge Section 3 was based on their treatment by the Internal Revenue Service was defective. BLAG argued that even if Section 3 was unconstitutional, these individuals would have been denied married status because the tax code refers to "husbands and wives" rather than spouses. Juge Bryant made short work of this, pointing out other provisions that make clear that nouns used in the tax code are to be given gender-neutral constructions and that the IRS specifically cited Section 3 of DOMA when it refused to treat the plaintiffs as married couples for federal tax purposes.
Where will it go from here? BLAG would normally file an appeal to the 2nd Circuit, as they were doing in the Windsor case from New York, but the ACLU filed a petition with the Supreme Court seeking to take the case directly up for review, bypassing the 2nd Circuit. BLAG has a petition pending in the Supreme Court to review the 1st Circuit's decision in Gill v. OPM, which affirmed the Boston district court using a modified rational basis approach. It probably makes sense for GLAD to file a petition in this case similar to the ACLU's petition in Windsor. Since it is very likely that the constitutionality of DOMA Section 3 will be on the Supreme Court's docket for the 2012-13 Term, it would certainly be efficient to get all the pending cases up there at the same time.