Leonard Link: New Strategy to Attack DOMA Unfolds in Federal Courts

Leonard Link: New Strategy to Attack DOMA Unfolds in Federal Courts

Early challenges to the constitutionality of the federal Defense of Marriage Act (DOMA) were all unsuccessful. The Act, passed in 1996, provides that no state is required to recognize same-sex marriages contracted in another state (Section 2), and that no federal law may be interpreted to recognize same-sex marriages (Section 3). The new strategy focuses on Section 3, and narrowly targets its specific applications rather than launching a broadside facial challenge to the statute.

The statute does not itself state any policy justification for the federal government refusing to recognize same-sex marriages that have been lawfully contracted in those jurisdictions that authorize such marriages, but in the legislative history (committee reports), four reasons are asserted: (1) advancing the government's interest in defending and nurturing the institution of traditional heterosexual marriage; (2) advancing and defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources.

In the early tests, all raised in private litigation, mostly in the years immediately after passage of the Act, federal judges reacted dismissively, finding that the law was subject only to the most undemanding rationality test, and finding one or more of the purposes articulated in the legislative history as sufficient. Also, challenges by couples who were not actually married were tossed out on standing grounds. Significantly, those early challenges predated the Supreme Court's 2003 ruling in Lawrence v. Texas, holding that a state may not attach criminal penalties to consensual homosexual conduct between adults because such conduct falls within the sphere of liberty protected under the Due Process Clause of the 14th Amendment, and insinuating in dicta that it was improper for the government to place significant obstacles in the way of adult intimate familial relationships.

After Lawrence, a new strategy for challenging DOMA in the courts was devised by the LGBT rights litigation groups. Individuals who had actually married and been denied some federal right or benefit as a result of DOMA would file suit, represented by one of the public interest law firms, contesting the constitutionality of DOMA as applied to their claim.

The first fruits of this strategy were harvested in Boston over the summer in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), a lawsuit brought by Gay & Lesbian Advocates & Defenders (GLAD), and in a companion case filed by the Massachusetts Attorney General, challenging several specific instances in which the ability of Massachusetts to accord equal treatment to same-sex marriages had been curtailed by federal policies required by DOMA. In his rulings in the two cases, Judge Joseph Tauro, a veteran federal trial judge appointed to the bench by President Richard Nixon, found that the unequal treatment required by DOMA was not justified, and that the law improperly invaded the sovereignty of Massachusetts. The Justice Department has appealed that ruling to the 1st Circuit Court of Appeals. The parties agreed to stay the judge's orders pending appeal.

Meanwhile, however, buoyed by the initial success of this strategy, LGBT rights organizations have filed additional lawsuits. GLAD filed suit in the U.S. District Court in Connecticut on behalf of same-sex couples who had married in Connecticut, Vermont, and New Hampshire, challenging the refusal of federal agency employers to extend family coverage to new same-sex spouses and the denial of spousal benefits under the Social Security Act. One of the plaintiffs in Pedersen v. Office of Personnel Management was also denied a survivor annuity under a private employer's benefit plan, the employer asserting that the plan would lose its preferred tax status under federal law if the benefit were to be extended, due to DOMA.

It will be interesting to see whether the Attorneys General of Connecticut, Vermont, and New Hampshire will be inspired by the example of their Massachusetts neighbor to file suits vindicating their states' authority to extend equal treatment to same-sex couples.

In the meantime, another suit was filed, this time in New York, by the ACLU's LGBT Rights Project and the NY Civil Liberties Union, on behalf of a woman seeking a refund from the federal government of the substantial estate tax payment made by the estate of her deceased same-sex spouse (they were married in Toronto) -- a payment that would not have been required had their marriage been recognized by the Internal Revenue Service, which declined to do so citing DOMA. Although New York State does not make same-sex marriages available within the state, a growing body of case law and executive decisions provides that such marriages contracted elsewhere are recognized in New York. As in the cases from Massachusetts and Connecticut, the plaintiff in Windsor v. United States is arguing that the unequal treatment mandated by DOMA with respect to her inheritance from her wife is unconstitutional and cannot be justified.

These challenges to DOMA proceed under the 5th Amendment of the Bill of Rights, commonly known as the Due Process Clause, which has been held by the Supreme Court to be binding on the federal government and to incorporate an "equal protection of the laws" requirement co-extensive with that expressly imposed on the state governments under the 14th Amendment. The argument goes that after Lawrence v. Texas, one can argue that unequal treatment on the basis of sexual orientation mandates heightened scrutiny by the court, which means the challenged policy should be struck down unless it significantly advances an important policy interest of the government.

In both of the recently-filed lawsuits, plaintiffs argue that the grounds articulated in the Congressional report are insufficient for this purpose, and that the additional arguments the Justice Department made in the Massachusetts case -- all rejected by Judge Tauro -- are equally insufficient. Those arguments center on a contention that by passing DOMA the federal government was attempting to stake out a neutral stance on the hotly contested issue of same-sex marriage, and to achieve uniformity in federal law by having the same definition of marriage apply throughout the country for purposes of federal policy. But DOMA is hardly neutral; it places the federal government on the anti-same-sex-marriage side in the debate, and it is hard to argue that achieving uniformity in federal law is an important goal, when the government now accommodates a regime under which marriage laws do vary from state to state in some particulars, so that couples who could marry in one state are barred from marrying in another yet the federal government recognizes all of those marriages that are contracted -- unless they involve same-sex couples.

In addition to these new lawsuits, another important case is pending on the West Coast, as Lambda Legal is pursuing the claim of a California woman who married her same-sex spouse in that state prior to the passage of Proposition 8 to include her spouse under her federal employer's health insurance program. Karen Golinski, an attorney on the staff of the 9th Circuit Court of Appeals, won a ruling in the court's internal grievance procedure from Chief Judge Alex Kozinski (appointed to the court by President Ronald Reagan), who avoided ruling on the constitutionality of DOMA by finding an alternative interpretive route involving enforcement of the 9th Circuit's internal non-discrimination policy. As the Office of Personnel Management defied the judge's ruling and instructed the insurance company not to process Golinski's application, Lambda has brought the case to the U.S. District Court in San Francisco, where oral arguments will be held on December 17. In a brief filed with the court on November 8, Lambda argues that the court can enforce Judge Kozinski's order without ruling on the constitutionality of DOMA, but in case the court decides it must confront that issue, DOMA is unconstitutional.

Lambda makes many of the same arguments that the plaintiffs make in the cases just filed on the East Coast. The telling point in all these cases is that the denial of the benefits being claimed has no rational connection with the reasons being advanced by the Justice Department for upholding the statute. Indeed, it is hard to know what important federal policy is served by denying equal treatment to married, tax-paying, lawful residents -- in some of these cases long-time federal employees -- just because they have married spouses of the same-sex.

As with the new New England litigation, it will be interesting to see whether the newly-elected New York Attorney General, Eric Schneiderman, a strong supporter of same-sex marriage, might be stirred to file an amicus brief in the case, or even commence litigation on behalf of the NY State Tax Department, which has failed to line up with other N.Y. state agencies in recognizing same-sex partners because the state's tax laws are intertwined with the federal tax code. Certainly the argument could be made, as it was made in Massachusetts, that the application of DOMA to restrict recognition of same-sex couples is requiring New York to deny such recognition under its tax code in violation of state sovereignty.

DOMA was a hysterical congressional response to litigation in Hawai'i, where the state Supreme Court had ruled in 1993 that a denial of marriage to same-sex couples might violate the state constitution. DOMA was enacted in 1996 as a trial was about to be held on that claim in Hawai'i on remand from the supreme court. A few months after DOMA was enacted, the court ruled in favor of same-sex marriage, but the decision was ultimately overruled when a state legislative compromise and a subsequent public referendum took away from the court the right to decide whether same-sex couples could marry while enacting a law providing a limited legal status and limited menu of rights for same-sex partners. So, ironically, at the time DOMA passed, same-sex couples could not actually marry anywhere in the world, the right to same-sex marriage was not established anywhere until after the turn of the century, in the Netherlands, then Canada, then Massachusetts. It was not based on any kind of systematic analysis of its potential impact should same-sex marriage eventually become available in some jurisdictions; the famous GAO study counting more than a thousand provisions of federal law that might be affected was not produced until after the statute was enacted, in response to a request by a member of Congress opposed to the law.

It seems past time for Congress to rethink the issue, although pending legislation to repeal DOMA does not appear to have sufficient support to move forward at present. So the matter falls to the courts, and the questions of the day are: Will the new strategy of chipping away at DOMA in narrowly focused as-applied attacks result eventually in a definitive declaration of unconstitutionality from the Supreme Court, obviating the need for heavy lifting in Congress? Or will an accumulating body of successful trial court decisions spark a congressional back-lash, putting the infamous Federal Marriage Amendment back on the legislative agenda? Only time will tell.