New Ruling in Dragovich: Another Nail in the Coffin of DOMA Section 3

U.S. District Court Judge Claudia Wilken issued a decision on January 26 rejecting the government's motion to dismiss the second amended complaint in Dragovich v. United States Department of the Treasury, 2012 Westlaw 253325 (N.D.Cal.), an action challenging the constitutionality of Section 3 of the Defense of Marriage Act of 1996. 

Judge Wilken's ruling was significant on two counts.  First, it extended the plaintiff group to include California state employees who are in registered domestic partnerships with their same-sex partners.  Second, expanding on a point Judge Wilken addressed last year in denying a motion to dismiss the original complaint (see 764 F.Supp.2d 1178 (N.D.Cal. 2011)), the court found that the record in the case thus far lacks any substantial justification that would save Section 3 of DOMA (which requires that the terms "marriage" and "spouse" will only apply to different-sex couples for all federal law purposes) from unconstitutionality under the 14th Amendment using rational basis review.

In the original complaint, the plaintiffs, California government employees who were married to their same-sex partners, either in California during the "window period" when such marriages could be conducted in 2008, or in another jurisdiction whose marriage is recognized in California, alleged that the refusal by the state's Public Employees Retirement System to let them enroll their spouses for Long-Term Care (LTC) insurance due to federal tax concerns as a result of DOMA Section 3, violated their constitutional rights to due process of law and equal protection of the law, necessarily drawing into question the constitutionality of Section 3.  They named the US Treasury Department, within which the Internal Revenue Service resides, as their lead defendant, seeking a declaratory judgment that the interpretation of relevant tax provisions to exclude their spouses from eligibility in reliance on Section 3 violates their constitutional rights.

Because all the plaintiff couples in that case were legally married, the court didn't have to face the question whether same-sex couples in registered domestic partnerships in California who are excluded from participation in this program also have a federal constitutional claim.  But the plaintiffs amended their complaint, adding such employees as additional plaintiffs.  Under California law, such partnerships carry all the state law legal rights of marriage.  The California Supreme Court ruled in 2009 that although Proposition 8, enacted by voters in November 2008, took away the right to marry for same-sex couples in California, it did not affect the California Supreme Court's prior determination that as a matter of state constitutional law same-sex couples are entitled to all the rights of different-sex couples, apart from the right to call their union a marriage.

In this motion to dismiss, the Federal Defendants focused solely on the addition of domestic partners to the case.  Consistent with the Justice Department's announced position, the federal government is not arguing in this case that Section 3 is constitutional.  Rather, they are resting their defense on the proposition that Congress's wording of the relevant sections of federal tax law clearly would not extend to domestic partners, as the list of "qualifying relatives" for purposes of this kind of benefit does not include unrelated members of a taxpayer's household.  But ultimately this seems like a word game, since the plaintiffs' argument is that same-sex registered domestic partners, who are treated as spouses for all purposes of California law, should also be treated as "spouses" for purposes of the tax treatment of LTC insurance coverage, inevitably bringing Section 3 of DOMA into play.  Certainly, California administrators are relying on Section 3 in arguing that they cannot extend this benefit to domestic partners without endangering the favored federal tax treatment of the benefits plan.

Reviewing the complicated history of Congressional deliberations — with special attention to Congressional reaction to the District of Columbia's attempt to establish domestic partnership benefits for its employees during the 1990s, even before the enactment of DOMA – Judge Wilken found clear evidence that Congress intentionally  excluded domestic partners out of animus and moral disapproval, clearly articulated by members of Congress during the legislative debates.  She also noted the detailed findings in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), that the legislative history of Section 3 of DOMA is pervaded with open animus against gay people. 

Turning to the equal protection claim, Judge Wilken noted that the 9th Circuit has yet to depart from its holding that sexual orientation is not a suspect classification for equal protection purposes, and so the trial court was bound to use "rational basis" review in evaluating the constitutionality of Section 3.  However, Judge Wilken noted, in Romer v. Evans, the Supreme Court held "that gays and lesbians, as a class, are at least protected from burdensome legislation that is the product of sheer anti-gay animus and devoid of any legitimate government purpose…  Thus, the Supreme Court has held that anti-gay animus is not a legitimate governmental interest that may serve to justify legislative enactments burdening gays and lesbians."

The issue before the court was whether the classification in the law governing eligibility for tax favorable treatment for LTC insurance is justified.  Plaintiffs argued that there is no legitimate justification, and that Congress excluded same-sex domestic partners out of animus.  (At the time the provisions in question were passed, there were several states that provided benefits to same-sex domestic partners of their employees, and many municipalities that did so, making the question more than merely theoretical.) 

The Federal Defendants responded that sexual orientation discrimination was not shown, because some jurisdictions allow different-sex couples to register as domestic partners, and they are similarly excluded from beneficial tax treatment, so the classification is based a distinction between domestic partnership and marriage, and not based on sexual orientation as such.  "This argument is not persuasive," wrote Wilken.  "In this state and many others, registered domestic partnership is currently the only available legal status that provides a complement of established rights and obligations for same-sex couples seeking legal recognition of their relationships."  California, for example, allows different-sex couples (who could otherwise marry) to register as domestic partners if at least one of them is 62 or older, but Wilken found that this does not "negate the burdens faced by same-sex registered domestic partners," concluding that laws "limiting same-sex couples to registered domestic partnerships, while precluding them from marriage, turn on sexual orientation."

Although the legislative history of the specific provision of tax law does not include express mention of domestic partners and reasons for their exclusion, Wilken found that the general evidence of hostility by Congress in connection with the D.C. domestic partnership ordinance — which Congress prevented from going into effect for many years through restrictions on the District's budget — and in connection with the enactment of DOMA was sufficient to give rise to an inference of discriminatory animus.  She rejected as "unpersuasive" the government's argument that the current statutory scheme "allows for the evolution of state domestic partnership law," asserting that the "favorable federal tax treatment for long-term care plans maintained and administered by the states. . . does not have any bearing on how state domestic partnership laws evolve, one way or another." 

Various other make-weight arguments were also rejected by the court.  Looking to other rational basis cases, such as Plyler v. Doe, 457 U.S. 202 (1982), and Rinaldi v. Yeager, 384 U.S. 305 (1966), where the Supreme Court had used a rational basis analysis to find a classification in federal law unconstitutional where the main governmental justification advanced was fiscal, Wilken explained that under the reasoning of these cases, "Federal Defendants must show that justifying the exclusion of registered domestic partners for the purpose of meeting federal fiscal objectives did not single out same-sex couples for arbitrary or impermissible reasons," and she found that "sexual orientation" is "a factor that bears no relevance to the purpose for which [the tax provision] was enacted, that is, to incentivize the purchase of long-term care insurance to improve the financial security of families throughout the country."  "It bears repeating," she continued, "that Plaintiffs have provided legislative history indicating that the distinction was actually motivated by anti-gay animus."

"None of the cases upon which Federal Defendants rely establishes that the rational basis test is satisfied where a challenged provision serves no legitimate government interest and the enactment is tainted by animus against a politically unpopular group," she wrote. "Therefore, Plaintiffs' allegations on behalf of registered domestic partners are sufficient to state an equal protection claim under the rational basis test."

Rather than get into the difficult question of which level of judicial review to employ in evaluating the Plaintiffs' Due Process claim, which asserted that the exclusion from coverage burdened a fundamental liberty interest, Wilken noted that a provision that flunks the rational basis test under Equal Protection would also do so under a Due Process analysis, and thus the Federal Defendants' motion to dismiss the Due Process claim would similarly be denied.

Reading this strongly worded decision would be thrilling if it were unprecedented, but at this point one can assert that Judge Wilken's analysis is squarely in the mainstream of a series of rulings over the past year-and-a-half bearing on the unconstitutionality of Section 3 of DOMA in a variety of judicial fora. These rulings were buttressed last year by the Justice Department's own analysis finding that sexual orientation discrimination claims should invoke strict scrutiny and that Section 3 was indefensible under that analysis.  The looming question, of course, is whether the federal appellate courts, and ultimately the Supreme Court, will embrace this reasoning. The first signs may emerge soon when the 1st Circuit rules in Gill or when the 9th Circuit rules in this case or Golinski

A 9th Circuit panel's decision last September to vacate as moot the Log Cabin Republicans' challenge to "don't ask, don't tell" was probably motivated, at least in part, by a prudential concern to avoid having to take on the issue of level of scrutiny in a case where, at least from the court's perspective, the plaintiffs no longer needed the relief they sought.  But, as Judge Wilken points out in passing, the Supreme Court's decision in Lawrence v. Texas to overrule Bowers v. Hardwick had undermined the 9th Circuit's rationale in its pre-Lawrence equal protection rulings, so perhaps it is finally time for the Circuit to address the issue in the context of benefits litigation against DOMA.


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.