Friday, July 9, 2010

Update on DOMA cases

There were actually two cases, which I had conflated in some of my earlier posts.

Gill vs. Office of Personnel Management:
argued by GLAD, this case brings suit on behalf of several legally married Massachusetts couples who were treated unequally by the Federal Government. Nancy Gill works for the postal service but is unable to cover her wife on the USPS plan or obtain other work benefits that are available to heterosexual married couples, and argued this violated equal protection principles since she is legally married.

Commonwealth vs. Department of Health and Human Services, argued by the Massachusetts State Attorney General, was based on the fact that the federal government told the state that it could not extend benefits (like the state Health insurance program) to same-sex spouses, on penalty of losing federal aid dollars. This case argued that DOMA infringed improperly on the state's sovereign right to determine who is married.

Both of these challenged just section 3 of DOMA, which states that the federal government will not recognize legal state marriages between same sex couples. (Section 2 excuses states from recognizing each other's marriages. That was not addressed.) The Judge found that Section 3 was invalid under two constitutional tests: equal protection (Gill) and a violation of the 10th amendment that delegates broad powers to the states (Commonwealth).

It's a great pair of opinions by Judge Joseph Tauro, appointed to the bench by Richard Nixon. From the Gill decision (and with my emphases):
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA. Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country....

I like that dig at Scalia, who was vehemently opposed to the decriminalization of homosexuality in the Lawrence case. This takes out the procreation argument.
But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual 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. 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. 

"For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."
That takes out the "defending/protecting straight marriage" Meme. Remember those opposed to marriage equality have never been able to point at any deleterious result in Massachusetts or other states.
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....”

In other words, take YOUR religion out of MY rights.
....In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis.[Because] animus alone cannot constitute a legitimate government interest,” this court finds that DOMA lacks a rational basis to support it.....Indeed, 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.

. ....And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.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.
The dislike and fear paraded through the Prop8 trial are dismissed by this Judge of the 1st US DIstrict Court as the bias they are. You don't get to discriminate just because you don't like us.

What next? Well, as with the Perry case, the next step would be appeal to the (1st?) Circuit Court of Appeals, and after that to SCOTUS. The interesting thing here is that the government is defending DOMA: Pres Obama's Justice Department is arguing that while it is discriminatory, it is still constitutional. And Pres Obama is supposed to be a "fierce advocate" for GLBT rights. So the Administration has got a tiger by the ear, here.

If the decisions stand, I'm not sure of the breadth; do they only apply to states and marriages within the geographical confines of the 1st District, or would it apply across the country?

Does this affect the Perry (Proep8) case? That's a much broader case with a more sweeping question: whether or not same sex marriage bans are Constitutional. The DOMA cases didn't address that at all, they simply asked, given same sex marriages, whether it is Constitutional for the Federal Government to discriminate. (The reason Prop8 is not being defended by the government is that neither the Governor nor the Attorney General in CA supported Prop8, and they refused to defend it. Therefore THAT case is being defended explicitly by the promoters of Prop8.) I'm sure that Judge Walker will read these opinions, but I don't know how it might affect his decision.

According to the NY TImes, legal scholars are split on whether this will hold up in appeal, but nearly everyone says it will be appealed. Lots of reactions compiled by Andrew Sullivan worry this could be an expensive victory, if it's overturned.


Grant said...

As I start to think about it, this may very well (if it survives SCOTUS) a direct impact on Perry and other state SSM bans. The reason is this: Section 3 of DOMA is all about defining marriage. This decision says that defining marriage in the way DOMA does (i.e. to the exclusion of same-sex couples) is unconstitutional. Well, Prop 8 isn't a ban on SSM, per se. Rather it is a definition (almost identical to DOMA Sec. 3) of marriage. So, as my non-lawyer eyes see it, this decision says that Prop 8 (and likely most if not all other SSM "bans") is unconstitutional. The laws have similar language to the same effect. I'm probably missing something, but I think this is clearl the direction this is heading.

Thanks be to God. :-)

IT said...

No, I disagree. What this said is that as long as the states have the right to define marriage, the Fed can't discriminate. It doesn't say anything about allowing people to marry, it simply says once they ARE allowed to marry, they have to be given equal rights.

Grant said...

Hmmm...I think you're right.

I wonder how the dicta in the Gill opinion will play in future SSM litigation as it relates to the few "arguments" for banning ig.