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Federal Judge Declares DOMA Unconstitutional

by Professor Will Huhn on November 20, 2009

in Constitutional Law,Equal Protection,Wilson Huhn

     Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals has found a key provision of the Defense of Marriage Act unconstitutional. 

     Judge Stephen Reinhardt issued a ruling Wednesday in the case of In the Matter of Brad Levenson in which he declared that a key provision of the Defense of Marrriage Act (DOMA) is unconstitutional.  

     Here are the facts of the case as described by Judge Reinhardt:

Brad Levenson has been a deputy federal public defender in the FPD since July 11, 2005.  He and Tony Sears have been partners for 15 years.  They registered their domestic partnership on March 16, 2000, and were married in California on July 12, 2008, at a time when under the law in that state persons could marry individuals of the same sex.  On July 15, 2008, Levenson requested that his husband be added as a family member beneficiary of his federal benefits.  That request was denied on the basis that the provision of benefits to same-sex spouses is prohibited by the federal Defense of Marriage Act, 1 U.S.C. 7.  Levenson challenged that denial as a violation of his rights under the EDR Plan and the Constitution.

     The relevant provision of DOMA, 1 U.S.C. 7, provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word âmarriageâ means only a legal union between one man and one woman as husband and wife, and the word âspouseâ refers only to a person of the opposite sex who is a husband or a wife.

     Judge Reinhardt declared DOMA to be unconstitutional under the Equal Protection component of the Due Process Clause of the Fifth Amendment.  (The Fourteenth Amendment is applicable only against the states and not against the federal government, but the Supreme Court has ruled that the Fifth Amendment contains an equivalent principle that requires the federal government to treat people on an equal basis.)

     Judge Reinhardt stated that he believed that laws that discriminate on the basis of sexual orientation should be evaluated under some form of heightened scrutiny, but that this was unnecessary in this case.  He found that the government had failed to identify even a legitimate interest in denying benefits to same-sex married couples, and that this law fails to satisfy even the rational basis test.  Accordingly, he ruled that DOMA is unconstitutional.

     The federal government had asserted that DOMA advances four governmental interests:

1.  "the government's interest in defending and nurturing the institution of traditional, heterosexual marriage;"

2.  "the government's interest in defending traditional notions of morality;"

3.  "the government's interest in preserving scarce government resources;" and

4.  "maintaining a consistent definition of marriage while individual states consider how to resolve the issue of marriage equality for same-sex couples."

     Judge Reinhardt expressed several reasons why these various interests either are not "legitimate" or are not rationally advanced by the federal statute.  As to the first interest in "defending … traditional, heterosexual marriage," Judge Reinhardt observed that the law will not encourage gay men to marry women or lesbians to marry men, and will not discourage men from marrying women or women from marrying men.  As to the second interest in "defending traditional notions of morality," he found that the law actually encourages immorality by prohibiting a class of persons from entering into legally recognized committed relationships and forming families.  As to the interest in conserving scarce governmental resources, this is, of course, a legitimate interest, but in denying benefits to a particular group the government must explain how this group is different from the group that is awarded benefits – and Judge Reinhardt found that gay and lesbian couples are just as capable of entering into committed relationships as heterosexual couples.  Finally, as to the fourth governmetntal interest, that of "maintaining a consistent definition of marriage," Judge Reinhardt found that the federal government had in fact "taken sides" in this dispute by refusing to recognize marriages that some states had chosen recognize.

     Judge Reinhardt noted that the government may not treat a group of people differently simply because a majority of people in society dislike the group or disapproves of them.  In Lawrence v. Texas the Supreme Court found that "traditional notions of morality," in and of itself, is insufficient to justify a law that infringes upon people's personal and intimate choices.

     In my opinion, Judge Reinhardt's opinion was absolutely correct based not only from the standpoint of individual, fundamental rights but also on the basis of federalism.  The problem that the federal government has in defending DOMA is that the federal government itself does not have any authority to declare who is married and who is not.  That is a matter that has historically been committed to the States.  For example, if the government had attempted to prohibit same-sex marriage anywhere in the United States pursuant to its authority under the Commerce Clause, I have no doubt that the courts would declare that it was beyond the power of the Congress to enact such a law – instead, the courts would find that the States, and not the federal government, have the power to declare who is married and who is not.

     Imagine for a moment that every state – all fifty states – decided to recognize same-sex marriage, but Congress elected to retain 1 U.S.C. 7 and refused to recognize these marriages as being valid.  Would anyone contend that Congress could make such a decision?  I submit that such a law would be clearly beyond the authority of Congress because it trenches upon the reserved powers of the States.  Why should such a law be constitutional during a time of transition while states are adopting such a position piecemeal?

     The strongest argument in support of DOMA is that Congress has this power under the Spending Clause – that Congress may lack the authority to directly recognize marriages under the Commerce Clause, but that under the Spending Clause Congress may decide which marriages to promote, and that DOMA achieves this goal by denying benefits to same-sex couples such as health insurance for federal employees, survivorship benefits under Social Security, and joint filing under the Internal Revenue Code.  

     But this line of reasoning brings us back to the idea that Judge Reinhardt found to be controlling in this case – that the federal government has failed to articulate a legitimate reason for treating same-sex couples differently.  According to the majority of the Court in Lawrence v. Texas "morality" by itself is not a sufficient reason, and according to Justice O'Connor's concurring opinion from the same case "moral disapproval" by itself is an illegtimate reason.

Visit Professor Huhn's website on Constitutional Law for information and links to sources and materials on Constitutional Law.