Court Strikes Down Marriage Benefit Discrimination

BOSTON—It's been over 40 years since all state prohibitions against whites marrying blacks and other ethnic minorities were abolished, and with any luck, the last major form of marriage discrimination may soon be off the books as well, thanks to U.S. District Judge Joseph Tauro's recent decision granting summary judgment to most of the plaintiffs in Gill v. Office of Personnel Management.

The lawsuit, which pitted several Massachusetts-based same-sex couples—same-sex marriage is legal in the state—against such opponents as the state's Office of Personnel Management, which administers federal funds received by the state; the U.S. Postal Service; and the Social Security Administration, sought to have the same federal benefits routinely doled out to married hetero couples also apply to married gay couples—and in the process, have the 1996 Defense of Marriage Act (DoMA) declared unconstitutional.

AVN readers probably tend to think of the Clinton administration as an era of progressive change after the previous dozen years of the Reagan and Bush I presidencies, but in fact, thanks to the Republican majorities in Congress after 1994, the conservative agenda drove forward [sic] in full force, including the Communications Decency Act, the Child Online Protection Act, the repeal of the Glass-Steagel Act (which prohibited a bank holding company from owning other financial companies)... and DoMA.

At its simplest, DoMA defined the word "marriage" to mean only "a legal union between one man and one woman as husband and wife," and the word "spouse" to refer only to "a person of the opposite sex who is a husband or wife." Judge Tauro opined that the Act may have been passed "as a direct legislative response to Baehr v. Lewin, a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution." In fact, same-sex couples still can't marry in Hawaii, thanks to an amendment passed in 1998 which essentially added DoMA to the state constitution, and even a bill to officially recognize same-sex unions was vetoed this year by Hawaiian Gov. Linda Lingle (R-As If You Couldn't Guess).

DoMA wasn't enacted strictly for "moral" reasons, since according to a Report from the U.S. House Judiciary Committee on the issue, the law explicitly warned that "a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits"—but on the other hand, the Report's assertion that Congress was not "supportive of (or even indifferent to) the notion of same-sex 'marriage,'" and that part of the reason to pass DoMA was to reflect Congress' "moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality," the unconstitutionality of the law under the First Amendment (not to mention the due process requirements of the Fifth and Fourteenth) can hardly be avoided—and Judge Tauro dealt with them all in his opinion.

But according to a General Accounting Office report in 1997, DoMA "implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation," the judge noted, while "A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status."

The case that gave rise to Judge Tauro's opinion arose when postal worker Nancy Gill attempted to add her spouse, Marcelle Letourneau, to her Federal Employees Health Benefits Program (FEHB), the Federal Employees Dental and Vision Insurance Program (FEDVIP), and the federal Flexible Spending Arrangement program, which Gill wanted to use to help with her spouse's medical expenses—all of which attempts were denied, and all of which denials cited DoMA as the reason.

Another plaintiff, Martin Koski, a former employee of the Social Security Administration, sought to change his "self only" enrollment in the FEHB to "self and family" enrollment in order to provide coverage for his spouse, James Fitzgerald, while still others sought to obtain Social Security benefits based on their marriage to a same-sex spouse, and to gain the federal tax advantages of being married.

The problem Judge Tauro confronted was that while the various federal agencies limited coverage under their plans to "spouses and unmarried dependent children under 22 years of age," DoMA further limited that coverage to hetero spouses—which led Judge Tauro to what he termed the "central question" of the lawsuit: "whether Section 3 of DOMA [the definitions section] as applied to Plaintiffs violates constitutional principles of equal protection."

"To say that all citizens are entitled to equal protection of the laws is 'essentially a direction [to the government] that all persons similarly situated should be treated alike'," Judge Tauro wrote. "But courts remain cognizant of the fact that 'the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.' And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

Judge Tauro concluded that although the plaintiffs had urged that DoMA be judged on a strict scrutiny basis—that is, whether the law serves a "compelling governmental interest"; is "narrowly tailored" to achieve that interest without compromising other rights the person affected may have; and is the "least restrictive means" by which the law's goals may be achieved—that in fact, it also failed the "rational basis" test, and "violates core constitutional principles of equal protection."

Judge Tauro began by disposing of the four "interests" that Congress claimed it had in passing DoMA: "(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources," noting that the government had abandoned all of those arguments in defending DoMA against the plaintiffs in the present case.

Judge Tauro noted that even infertile hetero couples can marry; that studies show that gays can raise kids that are just as well adjusted as the kids of heteros; that DoMA doesn't make gay people want to marry opposite sex partners, in large part because the plaintiffs here are already in same-sex marriages; and that denying benefits to same sex couples does nothing to make hetero marriages more secure.

"What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable," the judge opined. "But to the extent that this was the goal, Congress has achieved it 'only by punishing same-sex couples who exercise their rights under state law.' And this the Constitution does not permit... Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....'."

What the government did argue in the present case was that "the Constitution permitted Congress to enact DOMA as a means to preserve the 'status quo,' pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage," and that DoMA was in fact an "incremental response to a new social problem" (gay marriage) that allowed Congress to slow down the "changing socio-political landscape" while the states finished their predicted debates on the subject.

But, "There can be no dispute that the subject of domestic relations is the exclusive province of the states," Judge Tauro wrote. "And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states' power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest."

And though the states have certain powers related to how marriages are handled by that state, Judge Tauro pointed out that while "so-called miscegenation [anti-black/white marriage]statutes began to fall, state by state, beginning in 1948... no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court [in Loving v. Virginia] finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process." This fact, the court also noted, destroys the government's assertion that same-sex marriage is somehow a more intense debate than interracial marriage was.

"Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter," the judge asserted. "This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry."

Judge Tauro also noted that while, when DoMA was passed in 1996, debate had begun in the states regarding same-sex marriage, the law at the federal level had no dog in that hunt; it merely accepted whatever the states had decided "marriage" consisted of. For example, interracial marriage was never the subject of federal law. This made DoMA a radical departure from all previous federal legislation on marital relations.

Finally, the judge observed that while each federal program has its own criteria for how it doles out benefits to individuals versus married couples, DoMA skews those criteria to deprive same-sex spouses of both benefits and rights.

"The federal definitions of 'marriage' and 'spouse,' as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits," the court noted. "For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization, as well as to obtain conditional permanent residency for those spouses pending naturalization. Similarly, the Family and Medical Leave Act ('FMLA') entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty. But because DOMA dictates that the word 'spouse,' as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples."

"It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits," the court continued. "...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... 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."

Needless to say, religio-conservatives were a little piqued.

"In so ruling, Judge Tauro dismissed a compelling federal government objective served by the Defense of Marriage Act: to conserve scarce federal resources by defining eligibility for federal benefits based on marital status according to long accepted notions of what marriage has meant under English and American common law based on Judeo-Christian precepts," wrote Joseph Klein for

"In striking down DOMA, Judge Tauro overturned a law that was passed by large bipartisan majorities, was signed into law by Pres. Clinton, and that merely clarified and codified the law of marriage," wrote The Daily Caller's Brian Brown, about Tauro's "absurdly poorly written opinion." "In the process, Judge Tauro also struck a dagger into the heart of our democratic processes and our constitutional system of government... President Obama is afraid he cannot deliver on his promise to overturn DOMA in Congress, so he's bringing in courts to do his dirty work. It was an underhanded trick, a sham trial, by folks who have sworn to uphold the law of the land."

"The two decisions by Judge Tauro were so poorly reasoned that most observers believe they will certainly be appealed by the Obama Justice Department," wrote Chris Gacek of Family Research Council. "Based on their previous statements, however, any effort to have Tauro reversed is likely to be half-hearted. Thus, it will be up to private parties and the states that have acted pursuant to DOMA to defend the traditional marriage definition as friends of the court. One can only hope and pray that sanity will prevail at the court of appeals and the U.S. Supreme Court."

One can only hope, indeed!