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The Obama Administration Must Appeal the DOMA Decisions

July 15th, 2010 1 comment

In today’s column over at 365gay.com (not gay on Feb. 29?), I argue that the government needs to appeal the decision by a Massachusetts federal district judge that ruled section 3 of DOMA unconstitutional.

I even think that the case might come out favorably even when it reaches the  Supreme Court.

Parsing the Two DOMA Decisions

July 9th, 2010 2 comments

Big, good, and mostly expected news: Federal district court judge Joseph L. Tauro ruled tonight, in two separate cases (Commonwealth of Massachusetts v. HHS and Gill v. OPM), that section 3 of DOMA is unconstitutional. It’s late, and I’ve just slogged through all 75 pages of the decisions, but there are a couple of things that really jumped out at me.

First, I was reminded that these cases were brilliantly targeted at the weaker part of DOMA. Section 3 reads:

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 wife.

In other words, DOMA takes the step — the historically unprecedented step — of creating a federal definition of marriage, which it then superimposes on the states’ own definitions, effectively limiting their legal and social effect. The two cases were brought by (1) the Commonwealth of Massachusetts itself; and (2) several legally married, same-sex couples living in Massachusetts. Their constitutional claims were quite different, but (as I’m about to show), connected in one vital respect.

Let’s start with the couples. Their claim is simple, elegant, and really irrefutable: Granting federal benefits and other rights to some married couples, but not to others, is about as clear and indefensible an exercise in the denial of equal protection as can be imagined. In Massachusetts, both opposite- and same-sex couples can marry, but the straight ones get the goodies and the gay ones don’t.

The judge didn’t find any need to apply any kind of heightened scrutiny to the case, because he found that the law didn’t even have a rational basis. In a case that repeatedly cited Romer v. Evans, the court ran through the purported congressional justifications for DOMA in record time (in part because the Obama defense team had abandoned them): encouraging procreation and child-rearing in the optimal setting, and conserving scarce resources. The other justification, which amounted to little more than “we must avoid the apocalypse” (“traditional notions of morality”) was brushed aside as insufficient to ground legislation, per both Romer and Lawrence v. Texas.

The one new justification that the government raised was protection of the status quo. The court demolished — I mean, demolished — this argument, noting that the “status quo” had been for the feds to recognize states’ definitions of marriage, so that DOMA radically changed that status. And the practice of recognizing, and deferring to, local law on marriage, had been unaltered throughout our history, even in especially contentious cases such as interracial marriage. That practice, in turn, was grounded in the long-standing recognition that marriage and family law is one of the most fundamentally state law issues of all.

In short, the court stated what everyone knows: DOMA was a panicked, hastily crafted law designed to shut down the marriage equality movement before it took hold. Rationality and deference to (what Congress considered) bad state law had no place in the discussion. If equal protection under the law means anything, it’s that laws fencing out classes of people need at least a plausible justification. This provision of DOMA has none.

———–

The equal protection argument used to strike down DOMA in the couples’ case turned out to be pivotal in the Commonwealth’s case, too. This was perhaps the most surprising aspect of the court’s decision.

As to section 3, DOMA doesn’t state a legal basis for Congressional action; so the government had to come up with one. It chose the spending clause, which allows Congress to tax and spend for the the  general welfare. (DOMA is (to an extent) about benefits.) The other side of that coin, the court stated, is the Tenth Amendment; it reminds us that Congress only has those powers enumerated in the Constitution. So while respect is due Congressional determinations of their power to legislate, courts get to decide whether an enumerated power can fairly said to have been exercised, or whether the principles of federalism reflected in the Tenth Amendment require striking down the law.

The spending clause discussion turned out to be simple, because the Supreme Court, in a 1987 case, established some clear limitations on Congressional ability to tax and spend. One was fatal here: “the legislation must not be barred by other constitutional provisions.” Since the court had ruled in the couples’ case that DOMA violated the guarantee of equal protection, that limitation was exceeded. (The court also noted that many of the federal laws affecting “spouses” had nothing at all to do with benefits, or spending.)

The court could have stopped there, but didn’t. What followed was a textbook exegesis of “the new federalism” that the Supreme Court has aggressively pursued (almost always by 5-4 majorities) over the past fifteen years. By way of background, the court sailed through the history of marriage regulation, beginning in the pre-Constitutional period. It’s always been a state matter, Judge Tauro noted, so much so that whenever anyone in Congress thought that family law matters might be worth regulating, a constitutional amendment (that would vault over any other constitutional issues) rather than legislation was considered. Until DOMA.

The Supreme Court, too, has assumed that domestic matters were beyond federal power to regulate; in a recent case criticizing an expansive view of the commerce clause, the Court feared that such an approach could lead to federal regulation of “family law and other areas of traditional state regulation.

The government can defend that it’s not making Massachusetts do anything, and maybe that argument will prevail — the Court consistently distinguishes receipt of benefits (like the Medicaid ones that Massachusetts can’t get for its same-sex spouses as it can for its opposite-sex marrieds) from directly forcing an action. But the federal tentacles reach so pervasively throughout the state’s own administration that the Supremes might find a line from benefits to commandeering has been crossed. Particularly unsympathetic is the federal effort to stop VA-funded cemeteries in the state from burying the spouses of service members next to their deceased partners.

And even if the Supreme Court — where this case is surely headed — thinks it can make the benefits/commandeering distinction as a matter of logic, to allow this level of intrusion into state’s affairs would be hard for this Court to do with a, er, straight face. (That’s not to say it would surprise me, especially from this group of activist, expedient-driven justices.) And it still doesn’t get around the equal protection problem, which seems to me unshakeable.

Good night!

The End of (Half of) DOMA: Massachusetts Lawsuit Exposes the Lies

July 9th, 2009 No comments

As many readers by now know, yesterday the Massachusetts Attorney General, Martha Coakley, filed a complaint challenging the constitutionality of section 3 of the Defense of Marriage Act. (For a good summary of the event, check out Law Dork.) Section 3 defines and limits “marriage” to opposite-sex couples for federal purposes; thus, even in the few states that have achieved marriage equality, like Massachusetts, same-sex couples have no skin in the federal rights and benefits game.

The complaint is devastating, and the case can be expected to succeed on the merits. From the Introduction comes this brief and effective summary of what’s wrong with DOMA:

“In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same sex-couples, and codified an animus towards gays and lesbian people.”

Yes, yes, and yes.

As to the first point: Congress was legislating on a sandy foundation in enacting section 3, the only section that the lawsuit challenges. (Section 2 provides that no state will be required to recognize the same-sex marriages performed in another state; this provision might be valid under the opaque “full faith and credit” clause of the U.S. Constitution.) One searches in vain for a prior instance, throughout history, where Congress attempted to define “marriage” through legislation–  this matter, like most areas of domestic relations, has been thought of as one of the areas of law most clearly committed to state law. And the evidence for this conclusion is clear and abundant.

First, over the years Congress has proposed (but never passed) numerous constitutional amendments to regularize divorce and marriage. The cumbersome constitutional process was thought necessary because Congress assumed that it lacked the authority to legislate in this area. In a report from 1892, the House Judiciary Committee stated that if Congress had this authority:

“[I]t would soon undertake to legislate upon the main body of domestic and local interests of the people which have always belonged to and been exercised by the States.” H.R. Rep. No. 1290, at 1 (1892) (emphasis added).

Nor is this any less clear today. As the Massachusetts complaint states, several members of Congress stated that section 3 of DOMA exceeded federal power. Of course, as Andrew Sullivan points out, “today’s GOP” support states’ rights only where convenient.

The Supreme Court, too, has long assumed that domestic relations were matters of state, and not federal control. In a case from 1890, the Court stated: “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.” In re: Burrus, 136 U.S. 586 (1890).

And the usually-states-rights friendly current Court (OK, never mind Bush v. Gore) is of the same opinion. Here’s Justice Clarence Thomas, noting that Congress can’t regulate anything it feels like, just because there’s some incidental effect on interstate commerce: “the power to regulate ‘commerce’ can by no means encompass authority… to regulate marriage… Our Constitution…leaves such matters to the individual States, notwith standing those activities’ effects on interstate commerce.” (United States v. Lopez, 514 U.S. 549, 585 (Thomas, J., concurring)).

Thomas is the most conservative member of the Court when it comes to the powers of Congress, but Lopez (which was about another issue entirely) showcased a Court in remarkable agreement on the issue of domestic relations. As Professor Anne Dailey has stated, the Lopez Court, divided on the interstate commerce issue before it, was nonetheless united “around the principle that family law constitutes a clearly defined realm of exclusive state regulatory authority.”  Federalism and Families, 143 U. Pa. L. Rev. 1787, 1789 (1995).

So what arguments might be made that Congress did not overstep its authority? No compelling ones, I’d say. One might argue that DOMA’s reference to federal benefits that are independently justified is just “housekeeping” —  just to make clear who’s entitled to them. Along similar lines, see the Department of Justice’s much-attacked brief in the California DOMA cases: DOMA is “neutral” in the marriage arena, and simply takes an administratively conservative approach by not “taking sides” in the marriage equality debate.

The Massachusetts complaint blows these arguments apart, and makes me wonder whether DOJ will fight this suit with the contention that DOMA is “neutral.” As the complaint states, DOMA forces the state to discriminate against its own citizens — especially in the provision of Medicaid benefits, which are funded by both the feds and the states. Massachusetts gets no federal contribution towards the marriage-dependent benefits of same-sex couples. What’s neutral about this?

This brings me to the last point of the complaint’s introduction — DOMA “codified animus towards gay and lesbian people.” Read the testimony, some of which is excerpted in the complaint, and tell me that this isn’t true. Rep. Tom Coburn, for example, said that no society had lived through “the transition to homosexuality….” (We’re transitioning to homosexuality? Why aren’t things getting ever-more fabulous?) DOMA had nothing to do with “states’ rights,” except as the antithesis of the term as historically understood.

In fact, read the complaint in any event. Even if you’re not a lawyer, you can get the gist of the problem that DOMA creates by going through the many practical and financial issues that have become needlessly and unfairly complex because of  this “neutral” law.