A unanimous three-judge panel of the Boston-based US Court of Appeals for the First Circuit ruled on May 31 that Section 3 of the federal Defense of Marriage Act (DOMA) violates the Constitution’s Fifth Amendment guarantee of equal protection.
The ruling came on consolidated appeals in two cases –– one brought by Gay & Lesbian Advocates & Defenders (Gill v. Office of Personnel Management), the other by the Commonwealth of Massachusetts (Commonwealth v. US Department of Health and Human Services).
“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest,” the panel concluded regarding DOMA’s section 3.
Since the Obama administration abandoned its defense of DOMA in early 2011, the party defending the constitutionality of section 3 has been the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, a group controlled by Republican Speaker John Boehner that was allowed to intervene as defendant. Given the near certainty of BLAG appealing to the Supreme Court, the appellate panel stayed its ruling pending such review. The high court, similarly, would almost inevitably take such an appeal –– since the federal government could hardly recognize same-sex marriages in some but not all the US appellate circuits –– and the case could be argued in the term beginning in October, with a decision rendered by June 2013.
The cases before the court did not require it to decide whether same-sex couples have a constitutional right to marry. Rather, the issue was whether Congress could adopt a general definition of marriage for all purposes of federal law that would exclude same-sex couples married under the laws of states authorizing them to do so.
US District Judge Joseph L. Tauro ruled in 2010 that there was no rational justification for what Congress had done in enacting DOMA in 1996. The appellate panel upheld Tauro in striking down the law but offered different reasons for doing so.
Congress and President Bill Clinton enacted DOMA in response to the possibility that the courts in Hawaii would require that state to allow same-sex marriages as a result of litigation then pending.
Writing for the panel, Circuit Judge Michael Boudin, appointed to the court by President George H.W. Bush, noted that Section 3 “affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half-dozen or so states that permit same-sex marriages. The number of couples thus affected is estimated at more than 100,000. Further, DOMA has potentially serious adverse consequences” for those states “that choose to legalize same-sex marriages.”
The key legal issue was whether Section 3 should be evaluated using the traditional “rational basis” test –– under which a claimant must show the government has no rational basis for making distinctions under the law based on a particular characteristic –– or if it must meet a more demanding form of judicial review.
Tauro concluded that Section 3 failed to survive the traditional test, but the court of appeals disagreed. The rational basis test is very deferential to the legislative and executive branches, presuming a law’s constitutionality and upholding it if there is any hypothetical non-discriminatory justification for it. Boudin wrote that the plaintiffs “cannot prevail” using that standard.
“Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase Social Security payments,” he wrote. “This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.”
What Congress could have believed when it passed the statute, then, is critical, and so this rationale would be acceptable, the panel found.
The court concluded, however, that the traditional rational basis test is not appropriate for these cases. Still, the court did not turn to “intermediate” or “heightened” scrutiny as the appropriate standard for reviewing DOMA, hewing to the circuit’s 2008 precedent in rejecting a constitutional challenge to the Don’t Ask, Don’t Tell policy. In that case, the First Circuit relied on the fact that in 1996, when the Supreme Court, in Romer v. Evans, threw out Colorado’s Amendment 2, which barred the state and local governments from enacting gay rights laws, it failed to identify “sexual orientation” as a “suspect classification” –– like race –– for which any distinctions in law must be justified using a demanding standard of review.
“Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer –– a case that could readily have been disposed by such a demarche,” Boudin observed.
Intermediate and heightened scrutiny, however, are not the only alternatives to traditional rational basis review, the court found. Boudin wrote that the Supreme Court has “several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported, or impermissible. It is these decisions –– not classic rational basis review –– that the Gill plaintiffs and the Justice Department [which is now arguing against DOMA] most usefully invoke in their briefs.”
The court identified three significant precedents. In 1973, the Supreme Court struck down a provision of the federal food stamp program that excluded households containing unrelated adults, based on legislative history showing that it was motivated by a “bare congressional desire to harm a politically unpopular group” –– “hippies” living together communally.
In 1985, the high court overturned a local zoning law enacted to keep a group home for mentally disabled adults out of a particular area, finding the provision was adopted based on “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.”
Finally, the court pointed to the Romer decision itself, where the Supreme Court found that Amendment 2 was a “status-based enactment divorced from any factual context from which we could discern a relationship to a legitimate state interest.”
The Supreme Court was applying a flexible approach to equal protection, Boudin, in essence, argued, not one based on labels, but rather one “sensitive to the circumstances of the case and not dependent entirely on abstract categorizations.”
The three cases Boudin cited were all based in “the historic patterns of disadvantage suffered by the group adversely affected by the statute.” In both the Romer case and the 2003 Lawrence v. Texas sodomy case, the high court concluded, in Boudin’s words, that “gays and lesbians have long been the subject of discrimination.” Given that history, DOMA merits “a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.”
Section 3, the panel concluded, imposed burdens on same-sex couples “comparable to those the Court found substantial” in the three precedents cited. As a result, “the extreme deference accorded to ordinary economic legislation… would not be extended to DOMA by the Supreme Court.”
The suit brought by Massachusetts introduced the complicating factor of federalism, which the panel found also justified a more demanding form of judicial review than the rational basis test, since Congress was intruding into the sphere of domestic relations law, traditionally a state function.
Here, the court did not accept Tauro’s conclusion that Section 3 violated the Tenth Amendment and the Spending Clause of the Constitution, finding that the Supreme Court had only applied these provisions to cases where Congress sought to interfere with state programs. Marriage equality states, however, are negatively affected by DOMA, the panel concluded.
“The denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws,” Boudin wrote. “These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”
In assessing the justifications advanced for Section 3, the court quickly discounted the idea that “preserving scarce government resources” could stand up as a rationale. “Where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction,” since such a group, Boudin wrote, “has historically been less able to protect itself through the political process.”
The court agreed with Tauro that enacting Section 3 “to support child-rearing in the context of stable marriage” was not rational. DOMA would “not affect the gender choices of those seeking marriage,” the court pointed out, noting the “lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”
Congress stated goal in 1996 of expressing “moral disapproval of homosexuality” is no longer a valid basis for legislation, in light of the 2003 high court sodomy ruling. Though the Supreme Court’s 1986 Bowers v. Hardwick ruling held that Georgia’s disapproval of homosexuality was a justification for its sodomy law, the 2003 Lawrence sodomy ruling stated that Bowers was “wrong when it was decided.”
The First Circuit panel also addressed the “new” rationale advanced by the Justice Department in front of Tauro in 2010 –– before Attorney General Eric Holder reversed his thinking ––that “faced with a prospective change in state marriage laws, Congress was entitled to ‘freeze’ the situation and reflect.” DOMA, the panel pointed out, “was not framed as a temporary time-out.” Despite fears expressed in Congress that state judges would “impose” same-sex marriage on a reluctant electorate, the court found that voters did not need any assistance from Congress on this score –– as evidenced by the dozens of state constitutional bans on marriage equality enacted in recent years.
“We conclude, without resort to suspect classifications,” wrote Boudin, “that the rationales offered do not provide adequate support for Section 3 of DOMA. Several of the reasons given do not match the statute, and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.”
Boudin made a point to emphasize that the panel’s ruling did not rely on another argument the plaintiffs had made, that DOMA’s “hidden but dominant purpose was hostility to homosexuality.” Comments by individual members of Congress should not be attributed to everybody who had voted for the statute, in light of its broad bipartisan support in 1996, he argued.
“Traditions are the glue that holds society together,” he wrote –– offering a more benign explanation for DOMA’s enactment –– “and many of our own traditions rest largely on belief and familiarity –– not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.”
The fact that DOMA may not have resulted purely from homophobia, however, does not change the fact that, as Boudin wrote, “Supreme Court decisions in the last 50 years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”
Boudin was joined on the appellate panel by Chief Judge Sandra L. Lynch, a Clinton appointee, and Juan R. Torruella, put on the court by Ronald Reagan. The majority of the three-judge panel, then, was appointed by Republican presidents.