In the last two years two other federal district courts have ruled that DOMA is unconstitutional. In 2010 Judge Joseph Tauro struck down DOMA in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass. 2010). The First Circuit Court of Appeals heard oral argument in Gill on April 4, 2012. On February 22, 2012, Judge Jeffrey S. White reached the same result in Golinski v. Office of Personnel Management (N.D. Cal. 2012). Golinski has been scheduled for oral argument before the Ninth Circuit Court of Appeals in September, 2012.
My earlier posting on the Golinski case may be accessed here.
DOMA is also being challenged by Edith Schlain Windsor in a lawsuit that is pending in the Southern District of New York. When her spouse died Windsor was required to pay hundreds of thousands of dollars in federal estate tax even though under the law of New York she was lawfully married to Thea Spyer. Had their marriage been between members of different genders, under federal law she would not have had to pay the tax. The District Court has yet to rule in Windsor v. United States.
Dragovich is different, though. First of all, it's a class action, so it will have an immediate legal effect on the rights of same-sex couples in the Northern District of California if it is upheld on appeal. Second, and more significantly, Judge Wilken extended her ruling not only to persons who are married under California law, but also to persons who are in domestic partnerships. The ruling would therefore be precedent for extending certain federal rights to same-sex couples even in those states that permit civil unions but which do not recognize same-sex marriage.
The plaintiffs in Dragovich include persons who are married under California law and persons who are in a domestic partnership. They consist of state employees who wish to obtain long-term care insurance for their spouses or domestic partners under CalPERS, the state's long-term care plan. The legal impediments to this are two federal laws working in tandem. DOMA, the federal Defense of Marriage Act, provides that same-sex couples are not considered "married" for purposes of federal law. And in defining who may be covered by a state-run long-term health care plan, a provision of the Internal Revenue Code expressly excludes household dependents who are not related to the state employee. This was done precisely because it would prevent "domestic partners" or members of "civil unions" from having access to long-term care insurance. The plaintiffs in this case challenged both DOMA and the provision of the federal tax code that did not allow domestic partners to participate in the state long-term care plans. Discussed separately below are the claims of the gay and lesbian married couples and the claims of the domestic partners.
Same-Sex Married Couples' Claim
Judge Wilken commenced her opinion with a thorough review of the legislative history of DOMA and the relevant provision of the Internal Revenue Code, demonstrating that they were designed to enshrine moral and religious views into law. For example, she took the following quote from the House Report on DOMA:
“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” (p.9)Judge Wilken concludes:
"Thus, legislative history that is relevant to both § 3 of the DOMA and § 7702B(f) of Title 26 contains evidence of moral condemnation and social disapprobation of same-sex couples." (p. 10)Later in her opinion Judge Wilken repeated this conclusion and observed that BLAG (the attorneys defending the law on behalf of the House of Representatives) did not dispute this finding:
"The legislative history described above demonstrates that animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in the Congressional record. The BLAG does not argue that the legislative record is free of moral condemnation of gay men and lesbians." (p. 21)Instead, BLAG contended that DOMA was adopted for four other legitimate reasons: (1) to protect the institution of marriage; (2) and (3) ; and (4) encouraging responsible procreation and preserving the social link between marriage and children. Judge Wilken responded to each of those arguments.
First, as to the argument that DOMA is a "cautious" statute intended to protect the institution of marriage. Judge Wilken found that it was not legitimate to attempt to "protect" the institution of marriage by simply excluding an entire class of persons from that legal status. There must be some reason for discriminating Second, she found that DOMA was not a "cautious" statute, but rather a radical departure for the federal government. The federal government had never before sought to wrest control over the definition of marriage from the states. DOMA represents an attempt by the federal government to define the institution of marriage, and cannot be considered to be a "cautious" measure.
BLAG's second argument was that DOMA saves the government money because it would not have to extend federal benefits to same-sex couples. However, Judge Wilken pointed out that the Congressional Budget Office has estimated that
"federal recognition of same-sex marriage would result in a net benefit to the federal treasury." (p.25)Furthermore, the court found that even if it could save money by denying benefits to a particular group of people, that group could not be picked at random or because of bias or prejudice against that group. At a minimum the government must be able to articulate some rational reason for treating a group differently. Quoting another court, Judge Wilken wrote:
"such a distinction could not survive rational basis review because it amounted to the 'selective application of legislation to a small group.'" (p. 26)The third reason offered by the BLAG attorneys is that DOMA "preserves uniformity" in federal benefits because only some states recognize same-sex marriage, and if the federal government recognized these marriages it would mean that only same sex couples in those states would be eligible for federal benefits. This is the weakest reason of all because as the district court found aside from same-sex marriage the federal government simply follows the law of the states in determining who is married and who is not. DOMA breaks that pattern:
"In considering the DOMA, Congress acknowledged the long-standing disposition of the federal government to accept state definitions of civil marriage. HR. Rep. 104-664 at 2 (“The determination of who may marry in the United States is uniquely a function of state law.”). Instead, § 3 of the DOMA undermines uniform recognition of marriage, by requiring federal agencies to discern which state law marriages are acceptable for federal recognition and which are not." (p. 28)The fourth justification offered by BLAG is that DOMA encourages responsible procreation and preserves the social link between marriage and children:
"The BLAG contends that the provision serves to incentivize the creation, stability, and closeness of heterosexual marriage, or the raising of children in that marital context, while declining to extend similar incentives to other relationships." (p. 28)The District Court dismissed this argument on "causality" grounds. Judge Wilken ruled that:
"the relationship between § 3 of the DOMA and the policy goal of steering child-bearing into the context of heterosexual marriage is too attenuated to be credited as a plausible rationale for the law. The law carries no incentivizing effect for heterosexual couples." (p. 28-29)In other words, DOMA doesn't encourage different-sex couples who have children to marry nor does it encourage different-sex couples who are married to have children. It doesn't even discourage different-sex couples who can't have children or who don't want to have children from marrying. Instead, it denies the benefits of marriage to same-sex couples, and in so doing it deprives the children of same-sex couples the federal benefits of belonging to a family that is recognized by the law of the state where they reside.
As to DOMA, the court concluded:
"In sum, the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest." (p. 31)Domestic Partners' Claim
Judge Wilken also found in favor of the domestic partners challenging their exclusion from CalPERS long-term care plan. However, in this portion of her opinion Judge Wilken declined to assess the constitutionality of DOMA because it was not clear that DOMA operated to prevent the states from including domestic partners in their long-term care programs. Instead, the court focused on the constitutionality of Section 7702B(f) of the Internal Revenue Code, the specific provision that precludes domestic partners from participating in state-supported long-term care plans.
At this point in its opinion the District Court referred to the legislative history of other similar statutory exclusions such as this to show that they were drawn for the purpose of preventing gays and lesbians in domestic partnerships from being able to access programs supported by federal funding. Two members of Congress expressly stated that this was their intent in voting for funding bans:
"Congress viewed registered domestic partnership as a quasi-marital status, such as when Representative Istook referred to domestic partnership as the “equivalent to gay marriage,” 1993 WL 236117, at *H4355, and Representative Stearns asserted that the District of Columbia domestic partnership registry was intended to give same-sex couples the legal and social benefits associated with marriage, 1995 WL 639923, at *H11659." (p. 35).An omission in the trial court's reasoning, however, is that there is no comparable legislative history in the enactment of Section 7702B(f). We really don't know why Congress failed to include the category of dependents that would have permitted domestic partners of state employees from participating in the long-term care plans. The District Court ruled, however, that contemporaneous legislative history regarding the enactment of other funding bans for domestic partners was relevant to proving Congress' intent:
"Thus, there is no direct evidence of either animus or a benign purpose in the record pertaining to § 7702B(f). However, information about Congress’s views regarding legal recognition of registered domestic partnerships, recorded at the same time as it considered and approved § 7702B(f), is relevant to the Court’s determination." (p. 36.)Accordingly:
"The Court infers that Congress acted on anti-gay animus in refusing to include registered domestic partners in the list of relatives eligible to enroll in state-maintained long term care plans." (p. 37)Conclusion - Discriminatory Effect versus Discriminatory Intent
Judge Wilken's decision on behalf of same-sex married couples is stronger than her ruling on behalf of domestic partners. DOMA intentionally discriminates on its face against same-sex couples. The discriminatory effect of Section 7702B(f) of the Internal Revenue Code is just as real, but it isn't at all clear that Congress intended to discriminate against domestic partners in adopting this portion of the tax code. In order to successfully challenge a provision under the Equal Protection Clause it is not enough for a plaintiff to prove that a law has a discriminatory effect; it is also necessary for the plaintiff to prove that the legislature intended to discriminate against the plaintiff's group. In this litigation, the same-sex marriage couples had an easier time proving discriminatory intent.
The larger significance of this case is that it is one more judicial pronouncement that discrimination against same-sex couples is arbitrary and capricious. It is one more nail in the coffin of the views that used to widely prevail, but which we are learning to reject as we evolve towards a more just and equal society.