I reviewed the facts of the Gill case and the decision of the District Court in a previous post, Federal District Court Rules DOMA Unconstitutional (July 8, 2010), and describe an important amicus brief that was filed in the case in Major Corporations, Law Firms, Civil Organizations, and Cities File Brief Opposing DOMA (November 10, 2011)
The panel, consisting of two Republicans and one Democrat, issued a unanimous opinion authored by Judge Michael Boudin. The essence of the appellate court's ruling is that Congress lacks the power to refuse to recognize marriages that the State of Massachusetts has chosen to recognize; or, at a minimum, Congress has not asserted any legitimate reason for refusing to recognize same-sex marriages that a state has chosen to recognize. The opinion is based nearly as much on federalism as it is on questions of fundamental right.
For this reason Ian Millhiser of ThinkProgress is critical of the decision. See Ian Millhiser, DOMA Opinion Analysis: Why Judge Michael Boudin Is Just Like 50 Cent (May 31, 2012). Millhiser says:
"The upshot of this paragraph [emphasizing how Congress is imposing on the right of the State of Massachusetts to recognize same-sex marriages] is that it allows Boudin to conclude that states like Alabama can continue to exclude gay couples from the Constitution’s promise of equality, while still extending that promise to couples in Massachusetts. But it is bad constitutional law ...."The plaintiffs in this case consist not only of same-sex couples but also the State of Massachusetts. There are approximately 100,000 same-sex couples in the United States, and because of DOMA they are denied thousands of rights under federal law that other married couples take for granted. Same-sex couples may not file joint returns for their federal income tax, they are not entitled to social security survivorship benefits, and as federal employees they may not obtain health insurance coverage or other benefits for their husbands and wives.
The states that recognize same-sex marriage are also punished under DOMA. The Court of Appeals made the following finding:
"By combining the income of individuals in same-sex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery." (p.9)In evaluating the constitutionality of DOMA law the the First Circuit declined to find that sexual orientation is a suspect classification for purposes of Equal Protection and accordingly decided not to apply "heightened scrutiny." Instead the court held that the "rational basis" test must govern the constitutionality of DOMA. However, the court then noted that in three cases construing the Equal Protection Clause the Supreme Court had struck down laws using the rational basis test: U.S. Dept. of Agriculture v. Moreno (1973), Cleburne v. Cleburne Living Center (1985), and Romer v. Evans (1996). In each of those cases the Supreme Court applied a standard that others have called "higher order rational basis" or "rational basis with bite." The Court of Appeals noted that in each of those cases the laws in question were directed against unpopular groups (hippies, the mentally handicapped, and gays and lesbians). Another factor that distinguishes those cases and that the First Circuit merely implied is that each of those laws regulated not simply commercial relations but rather the personal lives of the people in question - their living arrangements, employment, housing, or education - and therefore the Supreme Court seemed more diligent in examining whether or not the government had a legitimate reason for enacting a law that had a discriminatory impact upon those groups. In this portion of its opinion the appellate court concluded:
"Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical [regulating prescriptions for eyeglasses] would not be extended to DOMA by the Supreme Court; and without insisting on "compelling" or "important" justifications or "narrow tailoring," the Court would scrutinize with care the purported bases for the legislation." (p. 19)Federalism was an important consideration in the decision of the appellate court. The First Circuit took into account not only familiar "equal protection" considerations such as the facts that gays and lesbians have been historically discriminated against and that this law imposes a special burden upon them; the court also noted that federalism concerns militate against the constitutionality of DOMA. The court stated:
"It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture." (p. 20)While federalism was an important influence on the court it was not the determinative factor. Concern for "states' rights" did not in and of itself make this law unconstitutional. The Court of Appeals was careful to note that DOMA did not run afoul of any limitations on Congress' power under the Spending Clause or the Tenth Amendment. In recent decades the Supreme Court has invoked the Tenth Amendment only in cases where the federal government has sought to interfere with the internal operations of state government, for example by commandeering state legislatures or state law enforcement officers to accomplish federal policies, and the only meaningful limitation on federal power under the Spending Clause is that any conditions placed upon the states must be "related" or "germane" to the federal purposes. DOMA does not violate either of these federal principles. DOMA does not purport to commandeer the actions of state officials nor does it place unrelated conditions on the receipt of federal funds. Nevertheless, the court said, the fact that DOMA places a significant limitation on the power of the states to enact and enforce their own laws of domestic relations requires the courts to carefully examine the reasons offered in support of the law. In short, this case was decided on Equal Protection grounds, but federalism concerns helped to tilt the balance. The court said:
"Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns." (p. 23)The appellate court then discussed the fact that DOMA was swiftly enacted with scarcely any factfinding or discussion of the underlying policy. There was only one day of debate in Congress and no legislative findings. The rationale for the law must be discovered in the House Committee report and the briefs submitted to the court. The House Committee Report offers four reasons for the law:
"[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources." (p. 24)The most significant passage of the court's opinion responding to these four arguments is the following:
"Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a 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." (p. 26-27)The Court of Appeals saved the best for last. At page 27 of its opinion the court highlighted the portion of the House Committee Report that expressly admitted that DOMA was enacted because of "moral disapproval of homosexuality." And that is really the crux of the problem. Supporters of the law cannot gainsay the fact that this law was enacted primarily because of people's knee-jerk response to homosexuality. This in itself is not a legitimate governmental interest. Beliefs about homosexuality - beliefs about the potential of any group of human beings - must be based upon something more than belief in order to support legislation treating that group of people differently.
There is a tension - a contradiction - at the heart of constitutional law that the courts have only begun to address. That tension centers on the role that "tradition" must play in constitutional analysis. Does "tradition" count for or against a statute under Constitutional Law? Justice Harlan expressed this tension in the following famous excerpt from his marvelously eloquent yet opaque dissenting opinion in Poe v. Ullman (1961):
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint."In Poe v. Ullman Justice Harlan, perhaps the most conservative justice on the Supreme Court in 1961, was arguing in favor of a woman's right to use contraception four years before Griswold v. Connecticut was decided. The traditions that were in conflict in that case were the traditional moral condemnation of birth control and the American tradition of liberty - the right to order our personal lives as we see fit.
That same conflict is present in the dispute over same-sex marriage. Judge Boudin addresses this conflict in a sensitive, perceptive passage near the close of his opinion, and I believe that he and the judges who joined his opinion have made a valuable contribution to the debate over same-sex marriage.
People on either side of this debate tend to demonize those on the other side. It is said that people who support same-sex marriage are guilty of supporting "immorality" and that those who oppose it are "prejudiced." From the perspective of passionate advocates these characterizations no doubt seem accurate. But there is another way of look at this. In 1918 Holmes wrote:
"Fools both, not to see that you are the two blades (conservative and liberal) of the shears that cut out the future."The gay rights movement is one more social movement, one more cultural revolution, of the many that have swept over our nation. Anger and fear are inevitable in a time of social transition. In the end all we can ask is that all people be receptive to the possibility that what they believe - either the equality or the inequality of man - may be mistaken. Tradition and received wisdom may represent the truth, but we must keep an open mind that it may amount to no more than superstition.
Here is Judge Boudin's description of the dual role that tradition plays in this case:
"Traditions are the glue that holds society together, 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. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But 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." (pp. 29-30)Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.