This article is an update for our readers on recent court decisions regarding the Defense of Marriage Act (“DOMA” or the “Act”). The constitutionality of Section 3 of DOMA has come under serious fire in recent months. Numerous federal courts have declared Section 3 of the Act unconstitutional, citing issues with both equal protection and federalism. The validity of Section 3 of DOMA and its definition of marriage are now likely in the hands of the Supreme Court, as the House Bipartisan Legal Advisory Group (“BLAG”) formally filed a petition for certiorari for the Gill case (discussed below) on June 29, 2012. Combined with President Barack Obama’s official declaration of support for same-sex marriage, and the Department of Justice’s refusal to defend DOMA, the current string of decisions holding Section 3 of DOMA unconstitutional may well foreshadow the demise of the law.

The Effect of DOMA on Same-Sex Married Couples
As discussed in our prior articles regarding the effect DOMA has on employers’ ability to provide employee benefits to the same-sex spouses and partners of their employees, Section 3 of DOMA states that marriage is “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”¹ Although DOMA does not prevent states from allowing same-sex marriage, it denies legally-married same-sex couples many federal benefits afforded to married couples of the opposite sex. For example, DOMA prevents same sex-couples that have been legally married from filing joint tax returns. Also, it prevents spouses of state and federal employees from receiving certain health and survivor benefits. DOMA also places higher estate tax burdens on the surviving spouse of a same sex couple, as they do not qualify for the unlimited marital deduction for monies gifted or willed to them by their spouse. Ultimately, DOMA denies a wide range of benefits to same-sex couples who do not qualify as “married” for purposes of federal law.

Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services
The companion cases of Gill and Department of Health and Human Services involved the denial of federal marriage-based benefits to same-sex couples that were available to similarly-situated opposite-sex couples.² TheFirst Circuit held that Section 3 of DOMA violated equal protection principals because the Act was not adequately supported by a “permissible federal interest.”³ Although the court refused to create a new “suspect classification” for LGBT individuals, which would require the application of strict scrutiny, the court still refused to apply the traditional rational basis review created in cases like Williamson v. Lee Optical.⁴ The court was also unwilling to apply the lesser level of “intermediate scrutiny” to DOMA.⁵ Noting that DOMA would survive rational basis scrutiny, where courts accept as adequate “any plausible factual basis,” the court settled on applying a version of rational basis review that provides less deference to the legislature. ⁶ This type of rational basis would require a stronger justification than that required in cases involving traditional economic and tax regulation.⁷

Key to the court’s ruling were issues of federalism. Stating that “[t]he denial of federal benefits to same-sex couples lawfully married does burden to choice of states like Massachusetts to regulate the rules and incidents of marriage,” the court found that DOMA’s intrusion on traditional state functions justifies the application of higher scrutiny than traditional rational basis.⁸ With federalism issues in mind, the court applied the more focused version of rational basis review in evaluating DOMA’s justifications.

In its analysis, the court questioned the validity of the various justifications for DOMA, as provided in House Committee report issued at the time DOMA was enacted in 1996.9 Some of proposed justifications for DOMA included, but were not limited to:

• defending and nurturing the institution of traditional, heterosexual marriage;
• defending traditional notions of morality;
• protecting state sovereignty and democratic self-governance; and
• preserving scarce government resources.

Finding the “preservation of scarce resources” argument fruitless, the court stated that “more detailed recent analysis indicated that DOMA is more likely on a net basis to cost the government money.”¹⁰ The court also found the state-sovereignty argument unpersuasive, noting that the Baehr decision from Hawaii does not force states to adopt laws legalizing same-sex marriage, and therefore DOMA did not serve to protect state sovereignty.¹¹

As in other cases, BLAG advanced the argument that DOMA is justified by promoting child-rearing in traditional marriages.¹² The controversial argument is based on the presumption that children raised by same-sex couples are worse off than those raised in by couples of the opposite sex. Refusing to examine the merits of the argument, the court instead dismissed the justification on the grounds that DOMA cannot actually prevent same-sex couples from adopting and raising children in Massachusetts, and therefore does not serve its intended purpose of promoting child-rearing in opposite-sex couples.¹³

The court also found that moral justifications for DOMA were meritless. Citing prominent cases such as Lawrence v. Texas¹⁴ and Romer v. Evans,¹⁵ the court reiterated that moral disapproval as a justification for legislation cannot survive even rational basis scrutiny.¹⁶ Although rational basis review grants extreme deference to the legislature, morality is one of the few justifications that does not survive even this low level of scrutiny.¹⁷

Ultimately, the court found the various proposed justifications for DOMA insufficient. Acknowledging that although many Americans view marriage as between individuals of the opposite sex, and that many states define marriage in that way, the court stated that “[o]ne virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to states that have chosen to legalize same-sex marriage.”¹⁸ Finding that DOMA lacked a “permissible federal interest,” the court held Section 3 of the Act to be unconstitutional.¹⁹ However, in anticipation that the Supreme Court will likely grant certiorari, the court stayed the mandate pending further review.²⁰ As stated above, BLAG filed a request for certiorari on June 29, 2012.

Dragovich v. U.S. Department of Treasury
In Dragovich, the Northern District of California also found that Section 3 of DOMA violated the equal protection rights of same-sex couples.²¹ The Plaintiffs challenged the constitutionality of DOMA to the extent that it limited their participation in a long-term care insurance program maintained by the California Public Employee’s Retirement System (“CalPERS”).²² As in Gill and Department of Health and Human Services, the court refused to create a new suspect class for LGBT individuals,²³ showing the same reluctance as other courts to add LGBT individuals to the list of protected classes. However, citing Gill, the court stated that “rational basis review is not ‘toothless’,” and chose to apply a more focused version of rational basis review.²⁴ Citing Romer,²⁵ the court stated that LGBT individuals are protected from burdensome legislation “that is the product of sheer anti-gay animus and devoid of any legitimate government purpose.”²⁶

BLAG presented the same justifications of DOMA as used in Gill and Department of Health and Human Services. The court proceeded to find each of the proposed justifications insufficient, citing that they were neither legitimate nor actually achieved by DOMA.²⁷ In response to BLAG’s argument that DOMA protected the institution of traditional marriage (and its moral importance) between two members of the opposite sex, the court was quick to point out that legislation justified by moral reasons does not survive rational basis review.²⁸ Moreover, the court found that DOMA did not actually achieve its intended purpose of protecting opposite-sex marriage because regulating domestic matters is a right reserved for the states, which have the ultimate authority to decide if same-sex marriage is legal in their jurisdictions.²⁹ The court used the same federalism argument to reject BLAG’s argument that DOMA prompted uniformity in eligibility for federal benefits, as the federal government has always accepted inconsistencies in state marriage laws.³⁰

BLAG next unsuccessfully attempted to argue that DOMA was needed to protect scarce government resources.³¹

The court was not persuaded, and noted that numerous cases have found that “selective application” of burdensome

laws to a class of persons in order save costs is insufficient justification for a law. Moreover, the court questioned whether the legislation actually achieved its purpose, as there are numerous other more effective ways to reduce government expenses.³²

Lastly, the court rejected BLAG’s argument that DOMA encourages responsible procreation, finding that the relationship between DOMA and the goal of promoting responsible procreation was “too attenuated.”³³ Finding BLAG’s various justifications for DOMA insufficient, the court ultimately held that Section 3 of the Act violated Plaintiff’s rights to equal protection.

Windsor v. United States
In Windsor, DOMA was challenged by a same-sex spouse who was denied the unlimited marital deduction for federal estate tax purposes, which resulted in the Plaintiff having to pay an additional $365,053 in federal estate taxes.³⁴ Because Edie Windsor, legally married to Thea Spyer, was not considered a spouse under DOMA, she was denied the unlimited marital deduction and forced to pay substantially higher federal estate taxes.³⁵ As in other recent cases, the district court in the Southern District of New York differentiated between traditional rational basis as applied to basic economic regulation and the more focused rational basis to be applied in the current case.³⁶ The court also felt no need to create a new suspect class for LGBT individuals on the grounds that DOMA could not survive this more focused rational basis scrutiny.³⁷ Using the same logic as (and citing) Gill and Department of Health and Human Services, the court found that Section 3 of DOMA “does not pass constitutional muster.”³⁸

Golinski v. Office of Personnel Management
Golinski is currently on appeal before the Ninth Circuit, with oral arguments scheduled to take place in early September.³⁹ Golinski involved the denial of federal benefits to a staff attorney for the Motions Unit of the Office of Staff Attorneys for Ninth Circuit. Karen Golinski was not permitted to enroll her same-sex spouse in her existing family coverage health insurance plan because her spouse did not fit the definition of “spouse” under DOMA.⁴⁰ The district court in the Northern District of California referenced the old standard of applying traditional rational basis review in sexual orientation cases established by High Tech Gays v. Def. Indus. Sec. Clearance Office.⁴¹ declaring it outdated and no longer binding.⁴² The court instead found that a heightened level of scrutiny should apply, citing

• a history of discrimination against gay men and lesbians;
• that sexual orientation has no effect on a person’s ability to contribute to society;
• the immutable nature of sexual orientation; and
• the minority status and political powerlessness of LGBT individuals. ⁴³

What differentiates Golinski from cases like Gill and Dragovich is how the court describes the level of applicable scrutiny. Where the courts in Gill and Dragovich seemed to apply rational basis with an added ‘kick,’⁴⁴ the court in Golinski applies a higher level of scrutiny and, in the alternative, argue that “the statute fails even rational basis review.”⁴⁵ Applying a heightened level of scrutiny, the court made quick work of DOMA’s justifications in the same manner as in other cases.

Other Cases
Other recent DOMA-related cases include McLaughlin v. Panetta (on stay pending the First Circuit’s final mandate Department of Health and Human Services), Cooper-Harris v. United States (Pending a court’s decision to be stayed), and Pederson v. Office of Personnel Management (pending trial in federal court in Connecticut).

Conclusion
Although courts in recent decisions have refused to create a new suspect class for LGBT individuals that would require the application of strict scrutiny, they have nonetheless found Section 3 of DOMA unconstitutional under lower levels of scrutiny. Although the courts hesitated to make the leap of placing LGBT individuals in a class with race or gender, the courts’ refusal to apply rational basis in the context of traditional economic regulation reflects a trend of the legal system’s acknowledgement of marriage equality for all Americans. The momentum of recent cases has paved the way for the Supreme Court to make a final determination on the constitutionality of Section 3 of DOMA. If it is found unconstitutional, the process of providing employee benefits to employees who have same-sex spouses or partners would be simplified (and, potentially, less costly to the employers and the employees). If you would like more information on the effect of DOMA on employers’ ability to provide employee benefits to the same-sex spouses or partners of their employees, please contact Ronald Triche, or the attorney with whom you normally work.

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¹ 1 U.S.C.A. § 7

² Massachusetts v. U.S. Dept. of Health & Human Services, 2012 WL 1948017 (1st Cir. May 31, 2012)

³ Id.

⁴ Id. at 6

⁵ Intermediate scrutiny requires that the law “be substantially related to a legitimate state interest” in order to be constitutional.

⁶ Id. at 5v

⁷ Id.

⁸ Id. at 8

⁹ H.R. Rep. No. 104 – 664, at 12 (1996)

¹⁰ Id. Department of Health and Human Services, 2012 WL at 9

¹¹ Baehr v. Lewin, 852 P.2d 44 (Hawaii S. Ct. 1993) was the first state case legalizing same-sex marriage. DOMA was largely enacted in response to Baehr because of Congress’s fear the Hawaii Supreme Court’s decision might force other states to legalize same-sex marriage.

¹² Department of Health and Human Services, 2012 WL at 9

¹³ Id.

¹⁴ Lawrence v. Texas, 123 S. Ct. 2472 (2003)

¹⁵ Romer v. Evans, 116 S. Ct. 1620 (1996)

¹⁶ Department of Health and Human Services, 2012 WL at 10

¹⁷ Id.

¹⁸ Id. at 11

¹⁹ Id.

²⁰ Id. at 12

²¹ Dragovich v. U.S. Dept. of Treasury, 2012 WL 1909603 (N.D. Cal. May 24, 2012)

²² Id. at 1

²³ Id. at 9

²⁴ Id.

²⁵ Romer, 116 S.Ct. 1620

²⁶ Dragovich, 2012 WL at 10

²⁷ Id. at 10 –14

²⁸ Id., citing Lawrence v. Texas, 123 S. Ct. 2472 (2003)

²⁹ id

³⁰ Id.

³¹ Id. at 11

³² Id.

³³ Id.

³⁴ Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)

³⁵ Id.

³⁶ Id. at 9

³⁷ Id. at 6

³⁸ Id. at 10

³⁹ Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012

⁴⁰ Id.

⁴¹ High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990)

⁴² Golinski, 824 F.Supp.2d at 984

⁴³ Id. at 986 – 989

⁴⁴ This type of scrutiny is referred to as a “more searching” version of rational basis under Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011)

⁴⁵ Id. at 995