DOMA Unconstitutional, DOJ Says

The DOJ's filing was largely expected, given the Obama administration's directive that it would not defend the law. This is the seventh case in which the DOJ has filed briefs affirmatively arguing Section 3 of DOMA is
unconstitutional, according to the department's Office of Public Affairs. In most of those cases, the DOJ is representing the defendant organization that enforced DOMA and is not challenging the plaintiffs' arguments. Tobits appears to be the only case involving two private parties fighting over the rights to benefits.

Section 3 of DOMA defines “marriage” and “spouse,” deeming marriage to be only between one man and one woman. The DOJ was given the opportunity to intervene in the case because the parties raised questions of the constitutionality of a federal law. U.S. District Court Judge C. Darnell Jones II of the Eastern District of Pennsylvania may not have to reach the constitutional issues in the case, but in the event he does, the DOJ wanted to go on record with its position.

Intervenor Status

Given its expectation that the DOJ would argue that Section 3 is unconstitutional, a committee of the U.S. House, the Bipartisan Legal Advisory Group, sought and was awarded intervenor status to argue that Section 3 is constitutional. The five-member committee of three Republicans and two Democrats from House leadership was split on the issue, and only the three Republicans signed on to the brief in support of DOMA.

A number of other groups have sought and received the ability to file amicus curiae briefs with the court.

Cozen Stance

Cozen O'Connor has not taken a position on the constitutionality of DOMA, arguing only that as the law currently exists, the firm would have faced severe tax consequences for the ERISA-based profit-sharing plan if it had recognized same-sex marriages as valid. The law firm filed the interpleader action this time last year to determine who should receive the approximately $41,000 in benefits accrued by partner Sarah Ellyn Farley before her death from cancer in 2009. There is a dispute as to how the beneficiary form was signed just hours before Farley's death, but the form does have the parents listed as beneficiaries.

The parents, David and Joan Farley, argue they have to be the beneficiary of the ERISA-qualified plan because DOMA defines “spouse” for purposes of ERISA and the Internal Revenue Code as a person of the opposite sex. They argued that that definition prohibits Cozen O'Connor's plan from recognizing Jennifer Tobits as Sarah Ellyn Farley's wife. The parents also argued that a similar Pennsylvania statute limiting marriage to between a man and a woman also bars Tobits from receiving the benefits from the Pennsylvania-based firm.

Tobits and Farley married in Toronto in 2006 and resided in Illinois. Farley was a partner in Cozen O'Connor's Chicago office. At the time of their marriage and Farley's death, Illinois did not provide for same-sex marriages, though the state has since passed a civil union law. Tobits argues that the constitutionality of same-sex marriages does not have to come into play because DOMA does not control the interpretation of the private profit-sharing plan. If it does, however, Tobits argues that DOMA is unconstitutional.

The DOJ'S Argument

The DOJ said that while, as a general rule, the rational basis review would apply to legislation challenged under equal protection principles, the heightened scrutiny review should apply in this case because the legislation differentiates groups of people for no sensible reason rather than for a reason that is rationally related to a government interest. The DOJ said heightened scrutiny review of whether a law comports with equal protection principles would be justified when groups are treated differently based on classifications such as race or gender. A review under heightened scrutiny requires the government to show, at a minimum, that a law is “'substantially related to an important government objective,'” the DOJ said in its brief.

The U.S. Supreme Court has yet to review whether heightened scrutiny should apply to classifications based on sexual orientation, the DOJ said. But the factors the high court has outlined for determining when the test should apply include whether the group has suffered a history of discrimination, whether members of the group have obvious or distinguishing characteristics that define them as a group, whether the group is a minority or politically powerless and whether the characteristics distinguishing the group have little to do with legitimate policy objectives or a person's ability to contribute to society.

The DOJ spent nearly 10 pages of its 42-page brief explaining how gays and lesbians have been discriminated against by federal, state and local governments as well as by private parties.

State Governments

State and local governments did similar things regarding public employment, the DOJ said. The department also pointed to state laws prohibiting sodomy as another form of discrimination. Child custody and visitation rights had been denied to gay and lesbian parents, the department added. Liquor licensing laws, on their face and through discriminatory enforcement, were used to shut down businesses patronized by gays and lesbians, it said.

Political Backlash

The DOJ also pointed out that efforts to combat discrimination against gays and lesbians faced political backlash, including the repeal of laws protecting the class. In terms of sexual orientation being an immutable characteristic, the DOJ said the established medical community has formed a general consensus that efforts to change an individual's sexual orientation are “generally futile and potentially dangerous to an individual's well-being.”

The DOJ further argued that gays and lesbians are a minority group that has historically lacked political power. While much of the discrimination the DOJ described has subsided, the department said there are still efforts such as ballot initiatives to repeal laws protecting gays and lesbians.

As an example, the DOJ said that when DOMA was enacted in 1996, only three states had laws specifically restricting marriage to opposite-sex couples. Now there are 37 states with such laws and 30 states have constitutional amendments explicitly restricting marriage to opposite-sex couples.

Fourth Prong

As to the fourth prong of the test to determine if heightened scrutiny should apply, the DOJ said that “just as a person's gender, race or religion does not bear an inherent relation to a person's ability or capacity to contribute to society, a person's sexual orientation bears no inherent relation to his or her ability to perform or contribute.” That point was made clear by President Obama, the DOJ argued, when he signed the Don't Ask, Don't Tell Repeal Act of 2010.

DOMA fails the heightened scrutiny test of being related to a governmental purpose because it was motivated by animus toward gays and lesbians and enacted to uphold the “traditional notions of morality” in the country as seen by Congress when it was enacted, the DOJ said.

The House report on the law's passage also stated an interest in extending legal preferences to heterosexual couples to promote heterosexuality and discourage homosexuality, the DOJ said.

Gina Passarella is a reporter for The Legal Intelligencer, an ALM sister publication of this newsletter in which this article also appeared. Ms. Passarella can be contacted at 215-557-2494 or [email protected].

The U.S. Department of Justice (DOJ) has deemed the Defense of Marriage Act unconstitutional in a brief it filed in a Pennsylvania case regarding whether the wife of a former female Cozen O'Connor partner is able to collect the partner's profit-sharing plan benefits under federal law.

“This court should hold that Section 3 of DOMA unconstitutionally discriminates,” attorneys for the DOJ said in its brief in Cozen O'Connor v. Tobits. “Section 3 treats same-sex couples who are legally married under their states' laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons. Under well-established factors announced by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny.”

Filing Expected

The DOJ's filing was largely expected, given the Obama administration's directive that it would not defend the law. This is the seventh case in which the DOJ has filed briefs affirmatively arguing Section 3 of DOMA is
unconstitutional, according to the department's Office of Public Affairs. In most of those cases, the DOJ is representing the defendant organization that enforced DOMA and is not challenging the plaintiffs' arguments. Tobits appears to be the only case involving two private parties fighting over the rights to benefits.

Section 3 of DOMA defines “marriage” and “spouse,” deeming marriage to be only between one man and one woman. The DOJ was given the opportunity to intervene in the case because the parties raised questions of the constitutionality of a federal law. U.S. District Court Judge C. Darnell Jones II of the Eastern District of Pennsylvania may not have to reach the constitutional issues in the case, but in the event he does, the DOJ wanted to go on record with its position.

Intervenor Status

Given its expectation that the DOJ would argue that Section 3 is unconstitutional, a committee of the U.S. House, the Bipartisan Legal Advisory Group, sought and was awarded intervenor status to argue that Section 3 is constitutional. The five-member committee of three Republicans and two Democrats from House leadership was split on the issue, and only the three Republicans signed on to the brief in support of DOMA.

A number of other groups have sought and received the ability to file amicus curiae briefs with the court.

Cozen Stance

Cozen O'Connor has not taken a position on the constitutionality of DOMA, arguing only that as the law currently exists, the firm would have faced severe tax consequences for the ERISA-based profit-sharing plan if it had recognized same-sex marriages as valid. The law firm filed the interpleader action this time last year to determine who should receive the approximately $41,000 in benefits accrued by partner Sarah Ellyn Farley before her death from cancer in 2009. There is a dispute as to how the beneficiary form was signed just hours before Farley's death, but the form does have the parents listed as beneficiaries.

The parents, David and Joan Farley, argue they have to be the beneficiary of the ERISA-qualified plan because DOMA defines “spouse” for purposes of ERISA and the Internal Revenue Code as a person of the opposite sex. They argued that that definition prohibits Cozen O'Connor's plan from recognizing Jennifer Tobits as Sarah Ellyn Farley's wife. The parents also argued that a similar Pennsylvania statute limiting marriage to between a man and a woman also bars Tobits from receiving the benefits from the Pennsylvania-based firm.

Tobits and Farley married in Toronto in 2006 and resided in Illinois. Farley was a partner in Cozen O'Connor's Chicago office. At the time of their marriage and Farley's death, Illinois did not provide for same-sex marriages, though the state has since passed a civil union law. Tobits argues that the constitutionality of same-sex marriages does not have to come into play because DOMA does not control the interpretation of the private profit-sharing plan. If it does, however, Tobits argues that DOMA is unconstitutional.

The DOJ'S Argument

The DOJ said that while, as a general rule, the rational basis review would apply to legislation challenged under equal protection principles, the heightened scrutiny review should apply in this case because the legislation differentiates groups of people for no sensible reason rather than for a reason that is rationally related to a government interest. The DOJ said heightened scrutiny review of whether a law comports with equal protection principles would be justified when groups are treated differently based on classifications such as race or gender. A review under heightened scrutiny requires the government to show, at a minimum, that a law is “'substantially related to an important government objective,'” the DOJ said in its brief.

The U.S. Supreme Court has yet to review whether heightened scrutiny should apply to classifications based on sexual orientation, the DOJ said. But the factors the high court has outlined for determining when the test should apply include whether the group has suffered a history of discrimination, whether members of the group have obvious or distinguishing characteristics that define them as a group, whether the group is a minority or politically powerless and whether the characteristics distinguishing the group have little to do with legitimate policy objectives or a person's ability to contribute to society.

The DOJ spent nearly 10 pages of its 42-page brief explaining how gays and lesbians have been discriminated against by federal, state and local governments as well as by private parties.

State Governments

State and local governments did similar things regarding public employment, the DOJ said. The department also pointed to state laws prohibiting sodomy as another form of discrimination. Child custody and visitation rights had been denied to gay and lesbian parents, the department added. Liquor licensing laws, on their face and through discriminatory enforcement, were used to shut down businesses patronized by gays and lesbians, it said.

Political Backlash

The DOJ also pointed out that efforts to combat discrimination against gays and lesbians faced political backlash, including the repeal of laws protecting the class. In terms of sexual orientation being an immutable characteristic, the DOJ said the established medical community has formed a general consensus that efforts to change an individual's sexual orientation are “generally futile and potentially dangerous to an individual's well-being.”

The DOJ further argued that gays and lesbians are a minority group that has historically lacked political power. While much of the discrimination the DOJ described has subsided, the department said there are still efforts such as ballot initiatives to repeal laws protecting gays and lesbians.

As an example, the DOJ said that when DOMA was enacted in 1996, only three states had laws specifically restricting marriage to opposite-sex couples. Now there are 37 states with such laws and 30 states have constitutional amendments explicitly restricting marriage to opposite-sex couples.

Fourth Prong

As to the fourth prong of the test to determine if heightened scrutiny should apply, the DOJ said that “just as a person's gender, race or religion does not bear an inherent relation to a person's ability or capacity to contribute to society, a person's sexual orientation bears no inherent relation to his or her ability to perform or contribute.” That point was made clear by President Obama, the DOJ argued, when he signed the Don't Ask, Don't Tell Repeal Act of 2010.

DOMA fails the heightened scrutiny test of being related to a governmental purpose because it was motivated by animus toward gays and lesbians and enacted to uphold the “traditional notions of morality” in the country as seen by Congress when it was enacted, the DOJ said.

The House report on the law's passage also stated an interest in extending legal preferences to heterosexual couples to promote heterosexuality and discourage homosexuality, the DOJ said.

Gina Passarella is a reporter for The Legal Intelligencer, an ALM sister publication of this newsletter in which this article also appeared. Ms. Passarella can be contacted at 215-557-2494 or [email protected].