BY ARTHUR S. LEONARD | Having survived the US government’s motion to dismiss their claims, three California same-sex couples are poised to strike a heavy blow against the Defense of Marriage Act’s denial of federal recognition of their marriages when a federal district court takes up a motion for certifying a larger class of eligible plaintiffs on February 24.
US District Judge Claudia Wilken’s January 18 decision on the federal government’s effort to scuttle the claims made in Dragovich v. US Department of the Treasury appears to forecast an easy victory for the plaintiffs at the trial level.
The lawsuit was filed by three California public employees and their same-sex spouses who were all registered domestic partners and then married in 2008 during the window period prior to passage of Proposition 8. The California Supreme Court subsequently ruled that such marriages remained valid.
After Michael Dragovich married Michael Gaitley, he inquired about signing his husband up for coverage under the state-maintained long-term care insurance plan for public employees and their families. The program administrators refused to send him an application, explaining the plan would lose its favorable federal tax status if they extended eligibility to somebody not recognized as a spouse under federal law.
The administrators based their decision on the US Internal Revenue Code, which specifies in detail the family relationships that qualify. Domestic partners are not listed, and the word spouse is limited by the terms of DOMA.
Dragovich and his husband along with two married lesbian couples interested in participating in the program joined as plaintiffs, suing both the state insurance program administrators and the US Treasury and the Internal Revenue Service, arguing that failure to allow them to enroll violates the due process and equal protection requirements of the 5th and 14th Amendments.
The US government defendants moved to dismiss based on grounds of standing and failure to state a claim.
The standing argument contends that none of the plaintiffs actually applied and was turned down for the plan –– a totally spurious argument, since the California administrators are so spooked about the danger posed to the plan’s tax status they would not even provide the plaintiffs with an application.
Judge Wilken cut through the nonsense, finding that the plaintiffs do have a personal stake and a real controversy to litigate.
On the merits, Wilken found that the plaintiffs had the makings of valid equal protection and due process claims.
Assuming these claims are evaluated applying the most lenient scrutiny to DOMA –– known as a rational basis test –– the government must explain some rational connection between the denial of the benefits these plaintiffs seek and a legitimate governmental purpose.
Wilken noted last summer’s DOMA decision by US District Judge Joseph Tauro in Massachusetts finding no rational basis for denying same-sex couples married in Massachusetts the right to federal benefits under a program administered by that state. She concurred with Tauro’s analysis.
The Justice Department, in defending DOMA in several cases, has essentially disavowed the policy statements underlying DOMA articulated in congressional reports and the floor debate when the measure was enacted in 1996, instead relying on the argument that Congress could rationally have decided that given the possibility some state might enact marriage equality –– Hawai’i looked possible at that point –– the federal government should “preserve the status quo” and maintain national uniformity for federal programs benefitting or otherwise involving spouses.
Wilken demolished the key premise in the US government’s argument.
“According to Federal Defendants, preserving the status quo allows states to resolve the issue of same-sex marriage for themselves, and provides uniformity in the federal allocation of marriage-related rights and benefits,” she wrote. “Section three of the DOMA, however, alters the status quo because it impairs the states’ authority to define marriage, by robbing states of the power to allow same-sex civil marriages that will be recognized under federal law.”
Wilken’s critique dug in deeper.
“Federal Defendants,” she noted, “concede that section three of the DOMA effected a departure from the federal government’s prior practice of generally accepting marriages recognized by state law.” The committee report in the House of Representatives, she pointed out, acknowledged that deciding who can marry had traditionally been “uniquely a function of state law.”
Adopting a federal definition of marriage was a departure from the status quo, not its preservation, Wilken concluded. The inability of California to extend eligibility for the long-term care insurance program is a prime example of this disruption to customary practice, she noted, deterring the state from providing full-scale marriage rights by placing the preferred tax status for other participants in the insurance plan in jeopardy.
Wilken found that there was such an obvious lack of rational justification for DOMA’s application in this case the law need not be evaluated according any tougher standard, such as heightened or strict scrutiny. The law could not be justified, in her view, even by the most lenient legal standard.
Since she did not apply heightened or strict scrutiny in her review of DOMA, Wilken did not have to consider whether sexual orientation is a “suspect classification,” like race or gender, eligible for protection under more demanding scrutiny, or whether DOMA burdened a fundamental right of gay and lesbian couples, which would also trigger a tougher standard of review.
The next step is the potential broadening of this case’s impact by certifying a class of all similarly situated California public employee plaintiffs. That is on the February 24 agenda, when the court hears a class certification motion.