First Circuit Declares DOMA Unconstitutional

Judge Michael Boudin, writing for the panel, characterized the plaintiffs' arguments as follows: “Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.” This it does not by prohibiting states from sanctioning same-sex marriages ' which states may indeed permit, and six, including Massachusetts and New York, already do ' but by stripping same-sex married couples of the legal benefits opposite-sex couples enjoy under federal law, including income tax breaks, Social Security survivor benefits and veteran spousal burial rights. To begin, Judge Boudin summed up, as best he could, the court's reasoning that would follow: “Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine ' not to create some new category of 'heightened scrutiny' for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.” In other words, this was not a case that was going to be dispatched with a concise and formulaic application of the standards of traditional constitutional inquiry.

The Combined Case

The plaintiffs in the combined case before the Eleventh Circuit were the Commonwealth of Massachusetts, whose case in the lower court was Massachusetts v. United States HHS, 698 F.Supp. 2d 234 (D. Mass. 2010); and several same-sex couples married in Massachusetts, whose case began in the district court as Gill v. Office of Pers. Mgmt., 699 F.Supp.2d 374 (D. Mass. 2010). The first case was brought by the Commonwealth of Massachusetts which, because it provides the same benefits to its married citizens regardless of whether they are married to members of the same or opposite sex, was in danger of losing certain federal funds because of this policy. (For example, the federal government provides funding for veterans' cemeteries and reserves the right to recapture those funds if states do not comply with federal law concerning who may be buried in them; although “spouses” may be buried along with eligible veterans, the federal government does not recognize same-sex husbands or wives of veterans to be those veterans' spouses.) The Gill plaintiffs were several couples, married in Massachusetts, who sought marriage-based federal government program benefits, which they were denied due to DOMA and the fact that they were not opposite-sex spouses. At the district court level, the relevant section of DOMA, section 3, was found unconstitutional, and the federal government was enjoined from enforcing it. That court stayed injunctive relief pending
appeals.

Representing the federal government on appeal were agents of the Bipartisan Legal Advisory Group of the U.S. House of Representatives, a Republican-led body that intervened in the action when the federal government withdrew, after declaring that it agreed with the plaintiffs that DOMA is unconstitutional and, thus, indefensible.

A Hybrid Form of Inquiry

As Judge Boudin explained, the crucial decider on appeal would be the level of constitutional scrutiny to be applied. Should it be the lowest level ' the so-called “rational basis” test ' where an act of Congress is considered constitutional if Congress had any rational basis at all for deciding to pass the law? Or should DOMA receive intermediate-level scrutiny, where it would be deemed constitutional only if the law were found to be substantially related to an important government interest?

The court dismissed the use of the lowest-level test, noting that DOMA would not have survived constitutional scrutiny had the rational basis test been applied. Congress cited some reasons for passing the law, including diminished tax revenues and higher Social Security costs, among others. And although these justifications might not have been rooted in the reality of what would actually happen if married same-sex couples were treated equally with opposite-sex married couples, they were still “rational” bases for the passage of DOMA.

Intermediate scrutiny would then have seemed to be the bar that DOMA would have to hurdle in this case, but that was not to be. As Judge Boudin explained, “Extending intermediate scrutiny to sexual preference classifications is not a step open to us,” because the First Circuit had previously rejected the notion that homosexuals are a “suspect class” such that legislation negatively impacting that group would be subject to the heightened intermediate level of scrutiny. See Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009). In addition, noted the court, the U.S. Supreme Court could have dispatched the case of Romer v. Evans, 517 U.S. 620 (1996), by declaring homosexuals to be a suspect class, but it failed to do so. Therefore, the traditional intermediate scrutiny avenue was closed.

But the First Circuit was not compelled to leave the matter there, because a series of three Supreme Court decisions have added nuances to the standard scrutiny-level inquiries. “Without relying on suspect classifications,” Judge Boudin observed, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And ' in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” These hybrid inquiries can be applied when: 1) a protesting group has historically been disadvantaged or unpopular; and 2) the state or local legislative body's justification for enacting the law affecting this group is flimsy, unsupported or otherwise impermissible.

The three Supreme Court cases the court cited to for permitting this unusual sort of constitutional inquiry were U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973) (invalidating exclusion of unrelated individuals living together from the food stamp program because law was based on “bare congressional desire to harm a politically unpopular group.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (local ordinance denying special permit for operating group home for mentally disabled overturned where purported justifications ' protecting inhabitants from flooding and population density ' equally applicable to nursing and convalescent homes that were issued permits); and Romer v. Evans, 517 U.S. 620 (1996) (law prohibiting regulations to protect homosexuals from discrimination struck down). In each of these three cases, the people adversely affected by the laws in question were members of groups unpopular at the time of passage (unmarried people living together, the mentally disabled and homosexuals).

Like the invalidated law in Romer, DOMA affects a traditionally politically and socially unpopular group: homosexuals. And the Eleventh Circuit court was not of the opinion that DOMA would have the effect of deterring same-sex couples from marrying, although it would penalize them by limiting the federal benefits they are entitled to. (True, DOMA might conceivably prevent some same-sex couples from entering into sham marriages solely in order to secure federal benefits, but opposite-sex couples are just as capable of marrying for this reason.) These social and financial burdens, placed on same-sex married couples on account of DOMA, the court considered similar to those placed on the affected parties in Moreno, Cleburne and Romer. “Accordingly,” the First Circuit concluded, “the extreme deference accorded to ordinary economic legislation ' would not be extended to DOMA by the (Supreme) Court; and without insisting on 'compelling' or 'important' justifications or 'narrow tailoring,' the (Supreme) Court would scrutinize with care the purported bases for the legislation.”

The Rationales

The court noted that DOMA has had an impact on the application of numerous laws to same-sex couples, yet the law was pushed through after just one day of hearings in Congress, with no discussion at all about DOMA's effects on the many federal programs at issue. Because the statute contains no prefatory language explaining the justifications for its passage, the court turned to the House Committee report. It states that the legislation was meant to advance four governmental interests: “(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.” H.R. Rep. No. 104-664, at 12 (1996).

Saving the second rationale for last, the court dissected the other three, finding first that DOMA does nothing to nurture traditional heterosexual marriage: The taking of benefits and protections from same-sex marital partners does not increase the benefits available to opposite-sex couples. Neither has any evidence ever been advanced to show that the refusal to offer federal benefits to same-sex married couples leads homosexuals to forego marrying the people of their choice in favor of opposite-sex partners.

Second, DOMA is actually antithetical to the protection of state sovereignty, as it undercuts state legislative or voter-mandated decisions to extend marriage rights to whomever they choose.

As for preserving scarce government resources, the jury is still out: Some government resources are saved, while others are foregone. But, referring to the holdings in Romer and Plyler v. Doe, 457 U.S. 202 (1982), the court observed that, where the distinction in a law “is drawn against a historically disadvantaged
group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction.”

Thus, the court turned to the final rationale expressed by the House Committee report: the defense of traditional notions of morality. It noted that moral justifications have long been considered adequate bases for enacting legislation. However, it also observed that the Supreme Court held in Romer and Lawrence v. Texas, 539 U.S. 558 (2003) (striking down legislation criminalizing sodomy), that moral disapproval alone cannot justify legislation discriminating on the basis of sexual preference.

Taking all of these things into account, the court concluded that DOMA could not withstand constitutional scrutiny. “Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point,” stated Judge Boudin. “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.”

The court was careful, however, not to conclude that limitation of marriage to opposite-sex couples is necessarily forbidden, as traditional moral norms may legitimately serve as the basis for legislation preserving the status quo. To this end, Judge Boudin's opinion concluded, “[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

A Showdown Draws Closer

Although the First Circuit affirmed the lower court's holding, it continued for an unspecified time the stay of the district court's injunction against application of DOMA, anticipating that certiorari to the Supreme Court would soon be sought. A week later, the Ninth Circuit denied the petition for an en-banc rehearing of Perry v. Brown, leaving in place the Feb. 7 affirmation that California's Proposition 8 effected an unconstitutional renunciation of same-sex couples' right to marry there. Like the First Circuit, the Ninth Circuit based its Perry decision on a “rational-basis-+” constitutional inquiry, and like the First Circuit, it stayed the district court's injunction (in this case, for 90 days only) pending the filing of a petition for writ of certiorari in the Supreme Court.

These cases are likely to go before the Supreme Court. Will it decide the issues in Commonwealth of Massachusetts v. Office of Personnel Management as the First Circuit guessed it would?

Janice G. Inman is Editor-in-Chief of this newsletter

Two federal courts have recently taken action in significant cases affecting the marriage rights of same-sex couples. One of these cases deals with an issue that is unlikely to affect New York citizens: In Perry v. Brown, the U.S. Court of Appeals for the Ninth Circuit left in place a February 2012 decision of a panel of that court denying the legality of California's Proposition 8 (which, by voter referendum, stripped same-sex couples of the right they had previously enjoyed in that state to marry.) In the other, the constitutionality of the federal Defense of Marriage Act (DOMA), 1 U.S.C. ' 7, is in question, and the ultimate outcome could affect the rights of New York same-sex married couples to be treated equally with opposite-sex couples by the federal government. On May 31, the First Circuit, in Commonwealth of Massachusetts v. Office of Personnel Management, 2012 U.S. App. LEXIS 10950 (1st Cir., 5/31/12), declared DOMA unconstitutional. (In pertinent part, DOMA defines “marriage,” for all federal law purposes, to be a legal union only between a man and a woman, and defines a “spouse” as a person married to a husband or wife of the opposite sex.)

Both these rulings are adding to the drive toward a showdown in the U.S. Supreme Court between social conservatives and liberals. If the Supreme Court takes them up, many questions that now surround gay marriage could be significantly cleared up.

In the First Circuit: The Parties and Their Contentions

Judge Michael Boudin, writing for the panel, characterized the plaintiffs' arguments as follows: “Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.” This it does not by prohibiting states from sanctioning same-sex marriages ' which states may indeed permit, and six, including Massachusetts and New York, already do ' but by stripping same-sex married couples of the legal benefits opposite-sex couples enjoy under federal law, including income tax breaks, Social Security survivor benefits and veteran spousal burial rights. To begin, Judge Boudin summed up, as best he could, the court's reasoning that would follow: “Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine ' not to create some new category of 'heightened scrutiny' for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.” In other words, this was not a case that was going to be dispatched with a concise and formulaic application of the standards of traditional constitutional inquiry.

The Combined Case

The plaintiffs in the combined case before the Eleventh Circuit were the Commonwealth of Massachusetts, whose case in the lower court was Massachusetts v. United States HHS , 698 F.Supp. 2d 234 (D. Mass. 2010); and several same-sex couples married in Massachusetts, whose case began in the district court as Gill v. Office of Pers. Mgmt. , 699 F.Supp.2d 374 (D. Mass. 2010). The first case was brought by the Commonwealth of Massachusetts which, because it provides the same benefits to its married citizens regardless of whether they are married to members of the same or opposite sex, was in danger of losing certain federal funds because of this policy. (For example, the federal government provides funding for veterans' cemeteries and reserves the right to recapture those funds if states do not comply with federal law concerning who may be buried in them; although “spouses” may be buried along with eligible veterans, the federal government does not recognize same-sex husbands or wives of veterans to be those veterans' spouses.) The Gill plaintiffs were several couples, married in Massachusetts, who sought marriage-based federal government program benefits, which they were denied due to DOMA and the fact that they were not opposite-sex spouses. At the district court level, the relevant section of DOMA, section 3, was found unconstitutional, and the federal government was enjoined from enforcing it. That court stayed injunctive relief pending
appeals.

Representing the federal government on appeal were agents of the Bipartisan Legal Advisory Group of the U.S. House of Representatives, a Republican-led body that intervened in the action when the federal government withdrew, after declaring that it agreed with the plaintiffs that DOMA is unconstitutional and, thus, indefensible.

A Hybrid Form of Inquiry

As Judge Boudin explained, the crucial decider on appeal would be the level of constitutional scrutiny to be applied. Should it be the lowest level ' the so-called “rational basis” test ' where an act of Congress is considered constitutional if Congress had any rational basis at all for deciding to pass the law? Or should DOMA receive intermediate-level scrutiny, where it would be deemed constitutional only if the law were found to be substantially related to an important government interest?

The court dismissed the use of the lowest-level test, noting that DOMA would not have survived constitutional scrutiny had the rational basis test been applied. Congress cited some reasons for passing the law, including diminished tax revenues and higher Social Security costs, among others. And although these justifications might not have been rooted in the reality of what would actually happen if married same-sex couples were treated equally with opposite-sex married couples, they were still “rational” bases for the passage of DOMA.

Intermediate scrutiny would then have seemed to be the bar that DOMA would have to hurdle in this case, but that was not to be. As Judge Boudin explained, “Extending intermediate scrutiny to sexual preference classifications is not a step open to us,” because the First Circuit had previously rejected the notion that homosexuals are a “suspect class” such that legislation negatively impacting that group would be subject to the heightened intermediate level of scrutiny. See Cook v. Gates , 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009). In addition, noted the court, the U.S. Supreme Court could have dispatched the case of Romer v. Evans , 517 U.S. 620 (1996), by declaring homosexuals to be a suspect class, but it failed to do so. Therefore, the traditional intermediate scrutiny avenue was closed.

But the First Circuit was not compelled to leave the matter there, because a series of three Supreme Court decisions have added nuances to the standard scrutiny-level inquiries. “Without relying on suspect classifications,” Judge Boudin observed, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And ' in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” These hybrid inquiries can be applied when: 1) a protesting group has historically been disadvantaged or unpopular; and 2) the state or local legislative body's justification for enacting the law affecting this group is flimsy, unsupported or otherwise impermissible.

The three Supreme Court cases the court cited to for permitting this unusual sort of constitutional inquiry were U.S. Dept. of Agric. v. Moreno , 413 U.S. 528 (1973) (invalidating exclusion of unrelated individuals living together from the food stamp program because law was based on “bare congressional desire to harm a politically unpopular group.”); City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432 (1985) (local ordinance denying special permit for operating group home for mentally disabled overturned where purported justifications ' protecting inhabitants from flooding and population density ' equally applicable to nursing and convalescent homes that were issued permits); and Romer v. Evans , 517 U.S. 620 (1996) (law prohibiting regulations to protect homosexuals from discrimination struck down). In each of these three cases, the people adversely affected by the laws in question were members of groups unpopular at the time of passage (unmarried people living together, the mentally disabled and homosexuals).

Like the invalidated law in Romer, DOMA affects a traditionally politically and socially unpopular group: homosexuals. And the Eleventh Circuit court was not of the opinion that DOMA would have the effect of deterring same-sex couples from marrying, although it would penalize them by limiting the federal benefits they are entitled to. (True, DOMA might conceivably prevent some same-sex couples from entering into sham marriages solely in order to secure federal benefits, but opposite-sex couples are just as capable of marrying for this reason.) These social and financial burdens, placed on same-sex married couples on account of DOMA, the court considered similar to those placed on the affected parties in Moreno, Cleburne and Romer. “Accordingly,” the First Circuit concluded, “the extreme deference accorded to ordinary economic legislation ' would not be extended to DOMA by the (Supreme) Court; and without insisting on 'compelling' or 'important' justifications or 'narrow tailoring,' the (Supreme) Court would scrutinize with care the purported bases for the legislation.”

The Rationales

The court noted that DOMA has had an impact on the application of numerous laws to same-sex couples, yet the law was pushed through after just one day of hearings in Congress, with no discussion at all about DOMA's effects on the many federal programs at issue. Because the statute contains no prefatory language explaining the justifications for its passage, the court turned to the House Committee report. It states that the legislation was meant to advance four governmental interests: “(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.” H.R. Rep. No. 104-664, at 12 (1996).

Saving the second rationale for last, the court dissected the other three, finding first that DOMA does nothing to nurture traditional heterosexual marriage: The taking of benefits and protections from same-sex marital partners does not increase the benefits available to opposite-sex couples. Neither has any evidence ever been advanced to show that the refusal to offer federal benefits to same-sex married couples leads homosexuals to forego marrying the people of their choice in favor of opposite-sex partners.

Second, DOMA is actually antithetical to the protection of state sovereignty, as it undercuts state legislative or voter-mandated decisions to extend marriage rights to whomever they choose.

As for preserving scarce government resources, the jury is still out: Some government resources are saved, while others are foregone. But, referring to the holdings in Romer and Plyler v. Doe , 457 U.S. 202 (1982), the court observed that, where the distinction in a law “is drawn against a historically disadvantaged
group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction.”

Thus, the court turned to the final rationale expressed by the House Committee report: the defense of traditional notions of morality. It noted that moral justifications have long been considered adequate bases for enacting legislation. However, it also observed that the Supreme Court held in Romer and Lawrence v. Texas , 539 U.S. 558 (2003) (striking down legislation criminalizing sodomy), that moral disapproval alone cannot justify legislation discriminating on the basis of sexual preference.

Taking all of these things into account, the court concluded that DOMA could not withstand constitutional scrutiny. “Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point,” stated Judge Boudin. “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.”

The court was careful, however, not to conclude that limitation of marriage to opposite-sex couples is necessarily forbidden, as traditional moral norms may legitimately serve as the basis for legislation preserving the status quo. To this end, Judge Boudin's opinion concluded, “[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

A Showdown Draws Closer

Although the First Circuit affirmed the lower court's holding, it continued for an unspecified time the stay of the district court's injunction against application of DOMA, anticipating that certiorari to the Supreme Court would soon be sought. A week later, the Ninth Circuit denied the petition for an en-banc rehearing of Perry v. Brown, leaving in place the Feb. 7 affirmation that California's Proposition 8 effected an unconstitutional renunciation of same-sex couples' right to marry there. Like the First Circuit, the Ninth Circuit based its Perry decision on a “rational-basis-+” constitutional inquiry, and like the First Circuit, it stayed the district court's injunction (in this case, for 90 days only) pending the filing of a petition for writ of certiorari in the Supreme Court.

These cases are likely to go before the Supreme Court. Will it decide the issues in Commonwealth of Massachusetts v. Office of Personnel Management as the First Circuit guessed it would?

Janice G. Inman is Editor-in-Chief of this newsletter