DoMA Down: Round One Strikes Section Three
Massachusetts: DoMA Down, But Not Out
Same-sex victory in federal court sets stage for next round
Michael Levenson brings us the news from Boston:
A US district court judge in Boston yesterday declared unconstitutional a 1996 law that bars federal recognition of same-sex marriage.
Judge Joseph L. Tauro, ruling in two separate challenges to the Defense of Marriage Act, declared that the law "induces the Commonwealth to violate the equal protection rights of its citizens" and "plainly intrudes on a core area of state sovereignty, the ability to define the marital status of its citizens."
"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," Tauro wrote.
Massachusetts Attorney General Martha Coakley, who brought one of the two challenges, said the decisions would apply only to the approximately 16,000 same-sex couples who have married in Massachusetts since gay marriage became legal here in 2004. They will now become eligible for the same federal benefits extended to married heterosexuals, she said.
"Judge Tauro's decision does not technically apply to other states," Coakley said. "It doesn't change anything in terms of how they treat marriage or how they're treated by the federal government."
But opponents as well as proponents of same-sex marriage predicted that the Obama administration will appeal the rulings to the US Court of Appeals for the First Circuit in Boston and that the constitutionality of the law will be decided by the US Supreme Court. During an appeal, it is likely that the law would remain in effect, lawyers said.
The law was defended in court by lawyers from the US Justice Department, even though President Obama supports repealing the law and has called it discriminatory.
What has been struck in Massachusetts is Section 3 of the
Defense of Marriage Act:
SEC. 3. DEFINITION OF MARRIAGE.
.....(a) In General.--Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"Sec. 7. Definition of 'marriage' and 'spouse'
....."In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means 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.".
Abby Goodnough and John Schwartz explain, for
The New York Times:
In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.
The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.
Neither suit challenged a separate provision of the Defense of Marriage Act that says states do not have to recognize same-sex marriages performed in other states. But if the cases make their way to the Supreme Court and are upheld, gay and lesbian couples in states that recognize same-sex marriage will be eligible for federal benefits that are now granted only to heterosexual married couples.
Thus, Section 2, allowing states to disapprove marriages fashioned in other states remains intact, though some expect a challenge to this part after the Section 3 battle is finished. Some argue that Section 2 contravenes the Full Faith and Credit Clause in
Article IV of the United States Constitution.
Criticial reaction to Judge Tauro's decision has been nearly predictable. Bruce Hausknecht, a judicial analyst for CitizenLink—a division of Focus on the Family—toyed with definitions:
"The fact that the judge could, with a straight face, conclude that after several millennia there is no rational reason why Congress might want to define marriage as one man and one woman, even though it has existed that way for thousands of years, is irrational."
(Levenson)
Massachusetts Family Institute president Kris Mineau called the ruling "another blatant example of a judge playing legislator", and argued the real question is not the definition of marriage, but that, "The federal government should have the right to determine [who receives federal] benefits."
Family Research Council senior vice president Tom McClusky accused the Obama administration of bad faith, claiming the outcome "results from the deliberately weak legal defense of DOMA that was mounted on behalf of the government".
Charles Lane, writing for
The Washington Post's "PostPartisan" blog, included the bad-faith suggestion in his review of the federal government's role in Utah's statehood and polygamy:
In fairness to the judge, the Justice Department seems not to have presented these facts to the court, and they aren't mentioned in the only historical document in the record before him, an affidavit from Harvard historian Nancy Cott from which Tauro quotes frequently. Maybe we'll hear more about them if the Obama administration decides to appeal.
The marriage equality movement responded to the decision with its own predictable rhetoric. "Today the court simply affirmed that our country won't tolerate second-class marriages," said GLAD attorney Mary Bonauto, who argued one of the cases. Plaintiff Nancy Gill was perhaps more measured in her assessment of Tauro's decision: "I am so happy I can't even put it into words."
Massachusetts Governor Deval Patrick spoke of a victory for the Commonwealth:
Governor Deval Patrick said those who challenged the law "clearly made a compelling and effective case against discrimination and, in the process, helped to guarantee that all of our citizens have access to the same protections and benefits."
"This ruling is a victory for equal rights and affirms the hard work we have done over the years to ensure that the citizens of our Commonwealth can marry anyone they love," he said in a statement.
(Levenson)
More sober analysis, of course, suggests there is much more to the decision than the political rhetoric otherwise allows. Professor Jack Balkin of Yale Law School called Tauro's two rulings "amazing", and explained, "No chance they'll be held up on appeal."
Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government's longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group's case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.
"These two opinions are at war with themselves," he said.
The arguments concerning the 10th Amendment and the spending clause, if upheld, would "take down a wide swath of programs — you can't even list the number of programs that would be affected," he said.
By citing the 10th Amendment and making what is essentially a states' rights argument, Professor Balkin said Judge Tauro was "attempting to hoist conservatives by their own petard, by saying: 'You like the 10th Amendment? I'll give you the 10th Amendment! I'll strike down DOMA!'"
(Goodnough and Schwartz)
Erwin Chemerinsky, dean of University of California-Irvine School of Law took a more sympathetic outlook:
"The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, Does the government have a rational basis for treating same-sex couples differently from heterosexual couples?" he said. "Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional."
A central issue in the fight over the constitutionality of California's same-sex marriage ban is whether laws restricting gay rights should be held to a tougher standard of review than the "rational basis" test, and so Judge Tauro's decision takes a different path that would eliminate the need for that line of argument, Professor Chemerinsky said.
"There's no need to get to higher scrutiny if it fails rational basis review," he said.
(ibid)
Boston College Law School professor and Huffington Post pundit
Kent Greenfield, like his Yale colleague, considered the decision in the context of the Tenth Amendment:
A federal judge in Boston has ruled unconstitutional the portion of the Defense of Marriage Act (DOMA) that limits federal benefits to straight couples even in states that recognize gay marriage. This is just the first inning in a long game that will eventually end up in the Supreme Court. The decision there will depend on whether the conservatives really believe in states' rights.
For almost 20 years, one of the pivotal debates on the Supreme Court has been the role of states' rights in limiting the power of the federal government. In cases on issues ranging from the possession of handguns in school zones to violence against women, the conservatives on the Court have argued that Congress cannot assert its power to regulate because doing so would encroach on "state sovereignty." According to the conservatives, areas of "traditional state concern" are protected by the 10th Amendment to the Constitution.
The contours of the 10th Amendment limitation have never been clear, mostly because the 10th Amendment itself is not clear. (It says that whatever powers the federal government does not have are left to the people or to states; it punts on what those powers actually are.) But one thing has been clear in the opinions of the conservatives on the Court: family law -- marriage, divorce, child custody -- is an area of traditional state concern. In both the handgun case (United States v. Lopez) and the violence against women case (United States v. Morrision), then-Chief Justice Rehnquist cited the federal regulation of family law as one of a parade of horribles that would arise if federal power got out of hand ....
.... Up to now, the 10th Amendment has been used almost exclusively by conservatives who want to limit the federal government's power to protect our environment, restrict firearms, or punish racial discrimination. And it's been a powerful rhetorical tool -- it's been used to good effect by the Tea Party, for example, in fighting health care reform and Wall Street bailouts.
But the DOMA case turns the ideology around. The 10th Amendment is being used for a politically progressive goal -- to fight against federally mandated discrimination in an area of traditional state concern.
When it gets to the Supreme Court, if the Court is consistent with its previous statements about family law being out of bounds for the federal government to regulate, then DOMA should lose.
The Atlantic's
Marc Ambinder tried to make sense of the seeming conflict between the two rulings:
So how will President Obama's Justice Department finesse its commitment to gay rights with its precedence-rooted commitment to defend the Defense of Marriage Act? The answer isn't clear, but what is clear is that Justice will take its sweet time trying to figure a way out. The government was surprised that yesterday's decision, in Gill v. OPM, didn't change the scrutiny standard at all -- and the plaintiffs were still able to win their case. Judge Joseph Tauro ruled that because marriage was "the firmly entrenched province of the state," the government could not regulate it without violating the 10th amendment. (Health care reform opponents will enjoy the logic of this argument.) In a separate and somewhat conflicting ruling, Tauro ruled that DOMA violates equal protection guarantees because it forces the state to discriminate. So -- can states ban gay marriage in Tauro's world? ....
.... Generally, the equal protection case is seen as the strongest, because DOMA was signed into law by politicians who wanted to make sure that gay couples could not get access to federal benefits if their states legalized same-sex marriages or civil unions. Its intent was to deprive a class of people of rights afforded to another class.
I don't know if this case has the ingredients to create (or recognize) a federal right to gay couples; one presumes that, if this case doesn't reach the Supreme Court, the more compelling challenge could come from a couple who gets married in Washington, D.C., decides to move to Kentucky and demands that Kentucky recognize their marriage ... which Kentucky, citing DOMA, won't.
The prevailing assumption among many gay rights advocates is that there are four and a half votes on the Supreme Court for gay marriage, and the fifth vote will depend upon both the sway of public opinion, which absolutely influences how the justices work, and the quality and elegance of the underlying argument. I don't know if Gill gets them there. But it does, in a sense, advance the line of argument that holds that any sort of discrimination against gays is irrational. That's something the appeals court will take up, and something that the administration will have to figure out how to argue very carefully ...
Yet there must be something amiss either in Ambinder's construction or my understanding of the Tenth and Fourteenth Amendments. And, most likely, yes, I am the one missing something.
Still, though, the decision in Massachusetts has great impact. When the issue is long settled,
Gill v. OPM and
Massachusetts v. DHHS will be remembered as landmarks in a long struggle toward equality.
____________________
Notes:
Levenson, Michael. "Judge rejects gay marriage curb". Boston Globe. July 9, 2010. Boston.com. July 9, 2010. http://www.boston.com/news/local/massachusetts/articles/2010/07/09/curb_on_gay_marriage_upended/
Government Printing Office.. "Public Law 104-199". 1996. GPO.gov. July 9, 2010. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ199.104
Goodnough, Abby and John Schwartz. "Judge Topples U.S. Rejection of Gay Unions". The New York Times. July 9, 2010; page A1. NYTimes.com. July 9, 2010. http://www.nytimes.com/2010/07/09/us/09marriage.html
United States Constitution. Legal Information Institute at Cornell University Law School. Cornell.edu. July 9, 2010. http://topics.law.cornell.edu/constitution
Lane, Charles. "Judge Tauro's questionable past". PostPartisan. July 9, 2010. WashingtonPost.com. July 9, 2010. http://voices.washingtonpost.com/postpartisan/2010/07/judge_tauros_questionable_past.html
Greenfield, Kent. "The DOMA Supreme Court Question: Do the Conservatives Really Care About States' Rights?" Huffington Post. July 9, 2010. HuffingtonPost.com. July 9, 2010. http://www.huffingtonpost.com/kent-greenfield/the-doma-supreme-court-qu_b_640615.html
Ambinder, Marc. "Administration Will Take its Time on DOMA Decision". The Atlantic. July 9, 2010. TheAtlantic.com. July 9, 2010. http://www.theatlantic.com/politics...on-will-take-its-time-on-doma-decision/59474/