Becoming the fifth US trial judge to declare the Defense of Marriage Act (DOMA) unconstitutional since the summer of 2010, District Judge Vanessa L. Bryant, in Hartford, ruled that Section 3 of the 1996 law, which denies federal recognition to valid same-sex marriages, violates the equal protection requirement of the Constitution’s Fifth Amendment.
The July 31 decision in Pedersen v. Office of Personnel Management, which the Gay & Lesbian Advocates & Defenders (GLAD) filed on behalf of six same-sex married couples and one widower, follows earlier rulings by courts in Boston, San Francisco, and New York. The plaintiffs’ marriages had taken place in Connecticut, Vermont, and New Hampshire.
Since the Justice Department early last year concluded that DOMA’s Section 3 is unconstitutional, the defense in this case was handled by former Solicitor General Paul Clement and his law firm, under contract with the Republican majority in the House of Representatives through the so-called Bipartisan Legal Advisory Group (BLAG).
The Second US Circuit, which includes Connecticut, has no binding precedent on the degree of judicial scrutiny claims of sexual orientation discrimination merit, so Bryant devoted a substantial portion of her opinion to deciding whether DOMA should be subjected to heightened scrutiny because it disadvantages a “suspect class.” If that were the case, the court would strike down the law unless the government were able to show that it significantly advances an important governmental interest –– a stiffer hurdle than normal in defending a statute.
Applying criteria used by the Supreme Court and wading through voluminous evidence presented by both sides, she concluded, “This Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.”
Having made that determination, however, Bryant said applying heightened scrutiny was not necessary to decide the case.
“DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny,” she wrote.
All three parties in the case –– GLAD, BLAG, and the Department of Justice (representing the administration, though not in defense of DOMA) –– presented Bryant with substantial evidence and argument about whether heightened scrutiny should apply, so perhaps she felt an obligation to address the question. Given how she resolved the case, however, her 50 pages of analysis of that question were not really necessary, though they make interesting reading.
Applying rational basis review, Bryant came to the same conclusions as the judges who have preceded her over the past two years, finding a logical disconnect between the arguments BLAG (and, originally, the Obama administration) advanced to support DOMA and the effect of the statute itself.
In 1996, same-sex marriage did not exist anywhere in the world, and the enactment of DOMA had everything to do with political pandering and nothing to do with anything that was real. Progress in same-sex marriage litigation in Hawaii –– later overturned by voters there –– was the proximate cause of the panic that led Congress to enact the law in a presidential election year. It wasn't until May 2004 that same-sex couples could marry anywhere in the US –– in Massachusetts.
The congressional debate in 1996 consisted of sloganeering, posturing, moralizing, and factually unsupported assertions about the interests of children, but as Bryant found, none of the reasons cited in committee reports or the ex-post-facto hypothesizing that the Justice Department originally put forward –– before abandoning its defense of the statute ––could stand up to serious examination. Nothing in DOMA acts to incentivize different-sex couples to act responsibly in their reproductive activities by marrying, there is no evidence that recognizing same-sex marriages would have any effect on different-sex marriages, children being raised by same-sex couples are disadvantaged by the federal government’s refusal to recognize their parents' marriages, and the Supreme Court, in its 2003 sodomy ruling, decisively rejected the idea that legislative moral judgments about homosexuality can be used to justify statutory discrimination against gay people.
What is left after these questions are disposed of is the contention that the federal government needs to have uniform national standards for determining eligibility for federal benefits and that recognizing same-sex marriages would put further strain on the deficit-plagued federal budget.
States already vary in their marriage eligibility standards –– on questions such as age and marriage by cousins, for example –– and the federal government has traditionally treated a couple as married if they are lawfully married under state law. Uniformity only became an issue when it looked like some states would allow gay couples to marry, and the current system –– requiring states and private sector actors to treat certain marriages as non-marriages if there is any federal nexus –– actually imposes a regime of non-uniformity. In an amicus brief filed recently in another pending DOMA case, a group of major private sector employers points out that Section 3 imposes unnecessary costs on them, since they have to treat employees differently for benefits and tax purposes depending on whether they have a same-sex or different-sex spouse, and this is undoubtedly true of federal agency employers as well.
On the question of federal budget pressures, the Congressional Budget Office recently calculated that if same-sex couples could marry everywhere in the US, the federal government would enjoy a slight financial benefit in terms of tax revenue.
Concluding there is no rational basis for the federal government to deny recognition to same-sex marriages and such denial works a substantial hardship on married same-sex couples, Bryant granted the plaintiffs' motion for summary judgment and denied BLAG's motion to dismiss the case.
BLAG would normally file an appeal to the Second Circuit, as it did in the wake of the recent victory by Edie Windsor, a widow challenging DOMA, in a New York federal court. However, the American Civil Liberties Union, representing Windsor, has filed a petition with the Supreme Court seeking to take the case directly there for review, bypassing the Second Circuit.
Meanwhile, BLAG has a petition pending in the Supreme Court to review the First Circuit's decision affirming a 2010 ruling in a Boston district court striking down DOMA.
It probably makes sense for GLAD to file a petition in this case similar to the ACLU's petition in the Windsor case. Since it is very likely that the constitutionality of DOMA Section 3 will be on the Supreme Court's docket for the term beginning in October, it would certainly be efficient to get all the pending cases up there at the same time.