Observations about DOMA Cases
July 8th, 2010
As we noted, Federal Court Judge Tauro of the United States District Court for the District of Massachusetts (First Federal Court District) announced rulings today in two different cases which found the Federal Defense of Marriage Act to be unconstitutional. This, my friends, is a WOW moment.
In reviewing the cases, I noted the following:
* The cases deal with two distinct sets of rights, the rights of individuals (i.e. Gill: the rights of gay married individuals to be treated like any other married individuals), and the rights of states (i.e. Commonwealth: the rights to define marriage for the residents of that state). In both cases and for different reasons, the judge found that the Federal Government had trampled rights.
* Both cases were found on summary judgment, in other words on matters of law not disputed fact.
* In Commonwealth, the judge noted that state control of marriage existed prior to the Constitution, during its enactment and ever since. Indeed, many times between the 1880’s and 1950’s there were an attempts to unify state marriage law and it the method understood to be required – and which was unsuccessfully attempted each time – was by means of a federal constitutional amendment.
* In Commonwealth, the state sued not on behalf of its residents but as an aggrieved party who has to pay taxes unfairly and loses revenue to which it is entitled. Massachusetts argued that it is both forced to discriminate against AND to be cheated by same-sex couples. It provided an example of the Federal Government disallowing the state to offer burial in a state-owned veterans cemetery without losing tens of millions of dollars and also an example of how being forced to treat married gay couples as single would result in the state paying medical benefits to individuals who would not qualify as part of a couple (while this may seem like harsh reasoning, it’s smart to point out that marriages include not only benefits but also obligations). Further, the federal government requires that the state pay taxes on its citizens’ income which should be exempt.
* In Commonwealth, the Judge found that the definition of marriage was not delineated as belonging to the Federal Government and was, therefore, the purview of the states. Further it relied on unconstitutional demands (as found in Gill) and thus does not come under the spending provision exceptions allowed for the federal government.
* The judge in the Gill case did not address issues of strict scrutiny. He found that he could make his determination based on the rational basis (lower level of scrutiny).
As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective.
In Perry v. Schwarzenegger, the opposing counsel argued that under the rational basis test, anything however bizarre or peculiar which ever could possibly be rationalized (what a rational person could believe) must be accepted as a justification for establishing different treatment for equally situated people. Judge Tauro – in this case – did not accept the wide breadth of such argument and this more narrowly insisting on a connection between stated goal and method which is not “arbitrary or irrational” may – at least in the short term – allow for a commonality of thinking and wording.
* In Gill, as in Perry, the
plaintiffs defendants (the federal government) tried to distant themselves from the arguments used to enact the legislation and replace these arguments with other, more legally compatible, arguments. Judge Tauro did not allow them to be dismissed entirely.
And as some of the previous arguments were the same as the current arguments in Perry, the finding by Tauro may be relevant to that case. He soundly dismissed the notions that banning gay marriage benefitted children (of anyone), further encouraged heterosexual marriage (“this court cannot discern a means by
which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex”), or protected the prestige of marriage (because the only tactic used to enhance heterosexual marriage was to harm gay people).
* In Gill the plaintiffs had offered “consistency” as a justification for not recognizing Massachusetts’ marriages – don’t have some states with some recognition and others with different recognition. They argued that the Feds have a right to “go slow” and wait for consensus. Basing his decision on the Commonwealth case, Tauro found that no such federal right exists.
Importantly, the passage of DOMA marks 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.
Further, the judge notes that DOMA actually contradicts the government’s criteria for distinguishing between who and who does not get benefits. If the government says that marital status is a legitimate basis for offering benefits to some and not to others, then denying it as a basis for same-sex couples challenges the legitimacy of marital status as a basis at all.
* These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.
* Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.