BY ARTHUR S. LEONARD | In the seven years since the US Supreme Court threw out the nation’s remaining sodomy laws in its historic Lawrence v. Texas ruling, a significant legal trend, one that has emerged slowly and, for most of that period, quietly, is now bearing tangible fruit, at least at the federal district court level — the current assault by LGBT public interest law firms on the US Defense of Marriage Act.
The actual legal precedent established by Lawrence was based on the holding that a state may not attach criminal penalties to consensual, private homosexual conduct between adults because such intimate conduct falls within the sphere of liberty protected under the Due Process Clause of the 14th Amendment. The language of the ruling, however, also included passages not strictly related to the court’s finding — dicta, in legal jargon — suggesting that it is also improper for the government to place significant obstacles in the way of adult intimate familial relationships.
The implications of Lawrence now form a significant thrust in the push against DOMA.
Early challenges to DOMA’s constitutionality — waged between its enactment in 1996 and the Lawrence ruling in mid-2003 — were all unsuccessful. The statute 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).
DOMA’s language does not itself state any policy justification for either the federal government or any state to refuse to recognize same-sex marriages lawfully contracted in jurisdictions that authorize them. However, in the statute’s legislative history, based on congressional committee reports, four reasons are laid out: advancing the government’s interest in defending and nurturing the institution of traditional heterosexual marriage; advancing and defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving scarce governmental resources in terms of public spousal and family benefits.
In the early tests, all mounted in private litigation rather than by the leading advocacy groups, federal judges reacted dismissively, finding that the law need merely survive the most undemanding rationality test. In each case, one or more of the four justifications articulated in the legislative history were deemed sufficient.
Challenges filed by couples who were not actually married were tossed out on the grounds of standing — an unmarried couple could state no tangible harm from either the federal government or that of any state.
After Lawrence, LGBT rights litigation groups — the Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal, and the American Civil Liberties Union (ACLU) among them — crafted a new strategy for attacking DOMA. 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.
Litigants would not launch a broadside challenge to DOMA arguing that it was unconstitutional on its face, but rather narrowly target their claims based on specific applications of the law. Significantly, that new litigation would focus on Section 3 of DOMA, which denies legal marriages federal recognition.
The first fruits of this strategy were harvested in Boston this past summer in Gill v. Office of Personnel Management, a lawsuit brought by GLAD, and in a companion case filed by the Massachusetts Office of Attorney General, challenging several specific instances in which Massachusetts’ ability to accord equal treatment to same-sex marriages — in programs administered jointly by the state and federal governments — 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.
Buoyed by this initial success, LGBT rights organizations have filed additional lawsuits. Early in November, GLAD filed suit in the US District Court in Connecticut on behalf of same-sex couples who had married in Connecticut, Vermont, and New Hampshire, challenging federal agency employers’ refusal to extend family coverage to new same-sex spouses and the Social Security Administration’s denial of spousal benefits. One of the plaintiffs in Pedersen v. Office of Personnel Management was 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, again 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 Massachusetts AG Martha Coakley to file suits vindicating their states’ authority to extend equal treatment to same-sex couples.
Meanwhile in New York, the ACLU’s LGBT Rights Project and the New York Civil Liberties Union have filed suit on behalf of a woman seeking a refund from the federal government of the substantial tax payment made by the estate of her deceased wife — a payment that would not have been required had their Canadian marriage been recognized by the Internal Revenue Service, which declined to do so citing DOMA.
Although New York State does not authorize same-sex marriages within the state, a growing body of case law and executive decisions provides that such marriages from other jurisdictions are recognized here. As in the Massachusetts and Connecticut suits, the plaintiff in Windsor v. United States is arguing that the unequal treatment mandated by DOMA regarding her inheritance from her wife is unconstitutional and cannot be justified.
Eric Schneiderman, just elected New York’s attorney general, has indicated a willingness to join the Massachusetts case, but he could also file an amicus brief in the Windsor case, or even commence litigation on behalf of the State Tax Department, which has explained its inability to follow the practice of other state agencies in recognizing same-sex spouses because New York tax laws are intertwined with the federal code. Certainly the argument could be made, as it was made in Massachusetts, that the application of DOMA to restrict New York’s recognition of same-sex couples under its tax laws is a violation of its sovereignty.
These challenges to DOMA proceed under the 5th Amendment of the Bill of Rights, commonly known as the Due Process Clause, which the Supreme Court has held binds the federal government to the “equal protection of the laws” requirement expressly imposed on state governments under the 14th Amendment.
The thrust of the post-Lawrence argument is 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 government policy interest — instead of merely surmounting some easier test of being rational.
In both the Connecticut and New York lawsuits, plaintiffs argue that the grounds articulated in the 1996 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 lacking.
The Obama administration Justice Department’s arguments center on the contention that DOMA represented the federal government’s effort to stake out a neutral stance on the hotly contested issue of same-sex marriage and to achieve uniformity in federal law and policy by having the same definition of marriage apply throughout the country.
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, since significant issues regarding age of marriage, the ability to marry cousins, and other requirements vary widely from state to state.
A fourth case, this one on the West Coast, is also part of the new litigation mix. Lambda Legal is pursuing the claim of a California woman to include her wife in her federal employer’s health insurance program. Karen Golinski, who works as a staff attorney at the 9th Circuit Court of Appeals, won an internal grievance procedure ruling from Chief Judge Alex Kozinski, appointed to the court by President Ronald Reagan. Kozinski avoided the question of DOMA’s constitutionality by employing an alternative interpretive route involving enforcement of the 9th Circuit’s internal non-discrimination policy.
The federal Office of Personnel Management, however, defied the judge’s ruling and instructed the insurance company not to process Golinski’s application. Lambda brought the case to the US District Court in San Francisco, where oral arguments will be held on December 17.
In a brief filed on November 8, Lambda argues that the court can enforce Judge Kozinski’s order without ruling on the constitutionality of DOMA, but also maintains that should the court decide it must confront that issue, DOMA is unconstitutional.
The telling point in all four of these cases is that the denial of the benefits same-sex marriage couples claim has no rational connection with the reasons the Justice Department advances for upholding DOMA. Indeed, it is hard to know what important federal policy is served by denying equal treatment to married, tax-paying, lawful residents — in some cases, long-time federal employees — just because they have spouses of the same-sex.
Of course, it is long past time for Congress to rethink DOMA, but pending repeal legislation lacks 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 eventually result in a definitive declaration of unconstitutionality from the Supreme Court, relieving Congress of the task of heavy lifting? Or might an accumulating body of successful trial court decisions spark a congressional backlash, thrusting the infamous Federal Marriage Amendment back onto the public stage? Only time will tell.