There are two tactics you can use when you’re seeking LGB equality in the courts. (Sorry T folks, this post just isn’t really about you, but you already knew that all this marriage equality stuff totally ignores your plight. I thought you’d at least appreciate this little shout-out to our cisgender privilege.) You can go the macro route of Prop 8’s Perry v. Schwarzenegger and try to get the court to say anything that discriminates against gays and lesbians is wrong and that sexual orientation ought to be a protected class. There’s a lot to gain but also a lot to lose if that strategy fails.
The other tactic much better describes yesterday’s two cases in Massachusetts, a strategic laser-point decimation of just one discriminatory law. In these cases, the target was actually just one specific part of one law, but that does not change the importance of this victory.
(If you want a quick review of the decisions, check out the coverage on last night’s Rachel Maddow show. Read on for a deeper analysis with excerpts from the decisions.)
The good ol’ Defense of Marriage Act does two things. The first is that it lets each state decide whether to recognize same-sex marriage for itself. This is why you can get married in Massachusetts, but if you enter Pennsylvania, you won’t be married anymore. I’m still convinced this is a violation of Full Faith & Credit, because it allows a license from one state to not be recognized in another. As frustrating as that is, it’s not what we’re here to talk about. Yesterday’s decision did not address this aspect of the law at all.
Both cases were brought to target the other piece of DOMA (“Section 3”), which says that for all relevant purposes, the federal government will define marriage as between a man and a woman. This is the law that holds back legally married same-sex couples from obtaining the 1,049 1,138 benefits offered by federal law, such as joint tax returns and social security for spouses. Both decisions deem this law unconstitutional, and both do it in different ways.
Now, before we dive in, it’s important to note something else about these cases. They were both brought against the Federal government. The Prop 8 case is in federal court and could still impact us all, but the focus is still California’s law. But these decisions intentionally targeted the fed. U.S. District Court Judge Joseph L. Tauro ruled against the constitutionality of DOMA in each.
In Gill v. OPM, seven same-sex couples married in Massachusetts, as well as three survivors (widows?), challenged the constitutionality of Section 3 of DOMA based on the Due Process Clause of the Fifth Amendment (“No personal shall… be deprived of life, liberty, or property, without due process of law”). The plaintiffs claimed that they did not receive due process because they could not enroll their spouses in federal health programs (administered by the OPM) or Social Security Benefits, nor could they file their income taxes jointly.
In Massachusetts v. HHS, the Commonwealth (it’s not a state, actually) of Massachusetts challenged the constitutionality of DOMA in regards to the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). DOMA, MA argued, “intrud[es] on areas of exclusive state authority” by forcing it to discriminate against its own citizens.
Let’s start with Gill (Read the full decision here in PDF). Judge Tauro introduces his conclusion as such (p. 21):
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”91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
He describes how, even with a rational basis review, the intentions of the law must be considered. The government must have had authority to pass it and it must address the concerns that were used to pass it. Even though the government disavowed Congress’s stated justifications for passing DOMA, Judge Tauro still tackles them head-on but in the most concise of ways.
With regards to child-rearing (p. 23-24):
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA. Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.
I love seeing language like that in a federal court! Judge Tauro also points out that procreation has never been a precondition to marriage.
The next paragraph, about “defending and nurturing heterosexual marriage” is also quite validating, to the point of being humorous (p. 25):
To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, 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.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
The only other reason Congress could have sought to deny recognition of same-sex marriage is to make heterosexual marriage appear more valuable or desirable. Judge Tauro acknowledges that this was only achieved by punishing same-sex couples who exercise their rights, which the Constitution does not permit. As well, citing Lawrence v. Texas, traditionally viewing a practice as immoral is not sufficient reason for upholding a law.
Next, we turn to the “new” arguments for DOMA. In defending this case, the government asserted that DOMA had to defend the “status quo” to ensure “consistency in the distribution of federal marriage-based benefits” from state to state. But Judge Tauro turned around and said that in regard to Congress having some interest in a uniform definition of marriage, “There is no such interest” (p. 28). In fact, “states have changed their marital eligibility requirements in myriad ways over time” and the government always “embraced these variations” (p. 29), and Judge Tauro cites miscegenation laws as a perfect example.
And since the government has never before defined marriage on the federal level, this gives us good reason to be suspect of the reasonableness of this law. The federal government cannot “have a legitimate interest in disregarding those family status determinations properly made by the states” (p. 32). If Congress truly wanted to maintain the status quo at the federal level, then they should have continued recognizing all state-sanctioned marriages, assuming maintaining the status quo could even be considered a legitimate government interest.
If the stated goal of DOMA was nationwide consistency of federal benefits among married couples, it had the opposite effect, because it now denies same-sex marriage couples the same benefits heterosexual couples enjoy (p. 34). There is one class by which to distinguish receipt of benefits: marital status, so to then to treat same-sex couples as a different kind of separate class “plainly cannot withstand constitutional scrutiny” (p. 35).
Here comes the conclusion. Note the use of the words “animus,” “disapproves,” and “prejudice” (pp. 37-38):
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
Now let’s take a look at Massachusetts v. HHS (Read it here on Scribd). Now we’re talking about state rights.
Here, the historic differences in how states defined marriage is much more relevant. Indeed, in the past (such as in the 1880’s), discussions were had about federal definitions of marriage and divorce but never gained much traction “because ‘few members of Congress were willing to supersede their own states’ power over marriage and divorce'” (p. 5). Judge Tauro offers a brief history of the “contentious social issue” of interracial marriage and points out that the federal government always respected how each state defined its marriages.
The first issue involves state cemeteries for veterans. Veterans Affairs gives states money to operate these cemeteries “solely for the internment of veterans, their spouses, surviving spouses,” and their children, but if the state stops operating them as veterans’ cemeteries, the VA can take back the money. Since DOMA classifies “spouse” as “opposite-sex”, the Massachusetts Department of Veterans’ Services learned that the VA would recapture Federal grant funds if a veteran’s same-sex spouse were buried in the cemetery. In 2008, the VA’s National Cemetery Administration declared that same-sex partners (through civil union or marriage) were ineligible for burial in any government-run veterans cemetery. Massachusetts DVS wants to bury Thomas and Darrel Hopkins together in recognition of their marriage.
The second issue regards MassHealth (MA’s comprehensive health insurance) and Medicaid. HHS reimburses MassHealth about half of its Medicaid expenditures, to the tune of billions of dollars. Because of this funding, MassHealth must abide by DOMA and recognize its own same-sex marriage citizens as though they were single. In other words, because Massachusetts recognizes same-sex marriage, it is punished in its ability to provide health benefits to its citizens; it is forced to discriminate against couples recognized as married.
A third issue is the Medicare Tax the Commonwealth must pay for its employees. Because DOMA doesn’t recognize same-sex spouses, the Commonwealth must pay additional Medicare tax to provide benefits to its same-sex spouses AND must pay administrative services to distinguish how to properly compensate each enrollee.
The federal government had tried to claim that there was no real threat to the Commonwealth. Judge Tauro rejected this claim, stating that the Commonwealth has already suffered and will continue to suffer if these claims are not addressed.
Just to warn you, this decision is a bit more jargony, which is why I’m excerpting less of it. The government claimed that DOMA was grounded in the Spending Clause of the Constitution, but Judge Tauro found that DOMA strayed from some of the clause’s requirements. For example, DOMA was not germane to the purposes of Medicaid or the State Veterans Cemetery Grants Program. Also, DOMA forces the state to violate the Fourteenth Amendment’s equal protection because it must treat some of its married couples differently from others.
In terms of the Tenth Amendment claim, DOMA fits all three qualifications for a violation. It imposes on the state’s statehood by imposing financial burdens (pp. 28-29). It clearly intrudes on state sovereignty in regards to family law (pp. 29-33). And, in the “key prong” of Tenth Amendment analysis, “the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to governn itself” (p. 34).
Judge Tauro concludes this ruling as such (pp. 35-36):
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,” because “the Constitution … divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status.The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.
While this decision doesn’t have all the justicey feel-good language of the other, it is still just as important. These two decisions go together and support each other in a way that creates a synergistic disavowal of the Defense of Marriage Act.
As always, we will not feel the affects for a while. Because this decision was in the District of Massachusetts, it only affects Massachusetts. When it is appealed, the effect could be much wider.
The bigger question, I think, is how the Obama administration will react. As Joe Subday points out, if they decide to appeal, “it will not sit well.” In effect, our fierce advocate will be forced to defend discrimination against us. In the meantime, we have a great victory to celebrate!