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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.


Dave November 21, 2009 at 3:20 pm

I hope we can all agree that Judge Reinhardt did his best work in Beverly Hills Cop.

Like a lot of things that the federal government gets into, we are approaching this from a completely illogical angle. If you are changing the definition of marriage, there ought to be a good reason. It is not just the same sex couple that are affected. It is the millions of people that are already married that are being affected.

I keep trying to come up with a good analogy, this is the best that I can do.

Think of one of those small communities that forces everyone within 1000 feet of the town square to paint their house white. I don't want my house white. So I will sue to have the definition of white to now include blue. I could muddy the waters and explain that white people aren't really white. Some old laundry products used to advertise "bluing for extra whiteness." Little blue-haired old ladies are actually dying their hair white.

So, blue is now white and everyone should be OK with that.

Dan S. November 21, 2009 at 5:22 pm

RE:"It is the millions of people that are already married that are being affected."
In what way(s)? Does this change the relationships they have with their spouses in any way? Please clarify your point so my wife and I will know how our lives will be changed.

Dave November 23, 2009 at 12:05 am

I take it from your answer that you are ok with changing the definition.

What is your position on the lady who married a dolphin? Or the guy who married a virtual girl?

Should we open the door to polygamy? How about underage spouses? These are fine in other cultures.

We could just make a mockery of the entire institution. Is that still OK?

Dan S. November 23, 2009 at 7:10 pm

Please read my post again. I asked HOW any potential changes would AFFECT E-X-I-S-T-I-N-G MARRIAGES…..nothing more…..nothing less. You stated that changes would affect "millions of people that are already married". I don't want to argue with you…..I just want to know HOW THOSE MARRIAGES WILL BE CHANGED.

P.O.L. November 23, 2009 at 8:55 pm

First of all, Dave, the Judge was way better in Fast Times at Ridgemont High. Awesome, totally awesome!

I always look at these types of questions three ways: 1) what should public policy be, 2) what does the Constitution actually require, and 3) what does the Supreme Court’s interpretation of the Constitution require. As for public policy, I don’t think government has any reason to recognize marriage as an institution and it should not recognize marriage in any form. I think the Constitution as written prevents the federal government from regulating what marriage is because marriage does not constitute interstate commerce, nor does it fall within any of its other regulatory powers. That alone would cause me to strike down DOMA. I think the Court’s position that the Fifth Amendment’s Due Process Clause requires equal protection is totally indefensible. Enslaving a race of people doesn't violate the Due Process clause itself, so it is hard to imagine how it requires equal protection.

Given the Court’s prior decisions, I don’t think the question is clear-cut. Marriage, at least when viewed from the government’s perspective, essentially defines a set of economic rights, that when looked at in the aggregate have a substantial impact on interstate commerce. Thus, at least some members of the liberal side of the Court might find it within the commerce power. I also think the DOMA would survive rational basis review. A court could believe that Congress wanted to encouraging reproduction to assure future economic growth, clearly an interest a court would find legitimate, and that its definition of marriage would encourage bi-sexual men and women or people who are questioning their sexuality into heterosexual marriage, which would further that goal.

Dave November 24, 2009 at 11:02 am

Dan, I apologize if I gave you too much credit. If marriage does not mean the same thing now that it did when you got married, I believe that changes existing marriages.

Marriage traditionally means a union between a man and a woman. If you think that by allowing it to be altered to mean 2 men or a man and 4 wives or a man and a child or a woman and a dolphin or a man and a virtual girl doesn't cheapen the institution you are entitled to that position.

What if we changed the definition of marriage to include poking someone in the eye with a stick? Could you then see that marriage had changed?

If you have a different point of view, then stand up and state it. Don't feel like you need to hide behind BIG LETTERS.

larry d. November 24, 2009 at 11:21 am

I like Judge as the star of the "Judge Reinhold Show" on "Arrested Development." Maybe we could get him to preside over the big terrorist case in NYC.

Dan S. November 25, 2009 at 12:38 am

This exchange is going nowhere, but since you (Dave) asked, I'll man-up and come out from behind the Big Letters and make my point. My spouse and I were married 38 years ago. We got married because we were in love and wanted to spend the rest of our lives together. As a side benefit, it also allowed us to make legal and medical arrangements that will protect either of us if the other is incapacitated or taken away by death. As we get older, that is a source of comfort that cannot be denied to us.

A lot of social, political, and religious changes have taken place in the last 38 years. Laws have changed and will continue to change. However, the way my spouse and I view OUR marriage has not, and hopefully never will, change. I hope you are starting to get my point……whatever you think, believe, or hate has no bearing on how my spouse and I feel about each other or the relationship(marriage) that we share. You are, of course, entitled to believe as you wish…..but under no circumstances should you ever think that you have the right or authority to tell me, my family, or any other loving couple how they should view their personal relationship. You, sir, are not the entity that will ultimately make that judgment.

As a final note, in my relationship, my spouse = wife. In yours or others relationships, spouse may = wife/husband/partner/other. That's your business…..and I won't stick my nose into it.

larry d. November 25, 2009 at 10:13 am

Seems to me the question isn't about what people think about their own marriages, but what purpose marriage has to society and the state or government. I assume the government recognizes marriage for a purpose, and that purpose probably has to do with social structure and the raising of children. The question then should revolve around those issues–I'm sure a lot of folks assume gay couples raise children just as well as straight couples, while a lot of other people assume the opposite. No one seems to want to take a serious look at the social ramifications, from either side.

On the other hand, if it's simply a matter of civil rights, as the debate seems to assume, government should stay out of it altogether and not recognize any privileges attached to marriage as it's discriminatory towards single people.

Professor Will Huhn November 25, 2009 at 1:31 pm

Dave, this difficult question of same-sex marriage cannot be solved semantically, by pretending that the only way that marriage can be defined is in a heterosexual sense. We have to come to grips with the realities of the situation. I agree with Dan – the recognition of same-sex marriage would have absolutely no effect on existing marriages.
I do agree that the states have a legitimate interest in defining who may marry and who may not. Assuming for the sake of argument that the states have the power and the right either to allow same-sex marriage or to limit marriage to a man and a woman, DOMA still presents an additional issue: "Does the Federal government have a legitimate interest in defining who is married and who is not?" In other words, does the federal government have to defer to the states in the definition of marriage?
Because Congress has only those powers enumerated in the Constitution, it is necessary to identify which portion of the Constitution grants the power to define marriage upon the Congress. It is not the Commerce Clause – marriage is not "economic activity" under Lopez. What do you think? Is this a matter that must be left to each of the states?

Dan S. November 25, 2009 at 2:36 pm

RE:"I'm sure a lot of folks assume gay couples raise children just as well as straight couples, while a lot of other people assume the opposite."

While raising children can certainly be considered part of the picture, I don't think it is central to the basic issue of who should be allowed(?) to be married(?). As we all should realize, there is no magic formula that determines/guarantees psychological or emotional fitness for child rearing….regardless of relationships of the parents/guardians/etc.

I'm also not sure if my civil rights as a marriage partner trump the civil rights of my single-living friends who have never married.

I agree that government probably recognizes 'marriage' as part of a social structure that defines partnership relationships as the basis of a 'family'. With the acceptance of the title of 'family' comes a specific set of rights and responsibilities that are enforceable by laws crafted to define, protect, and limit the activities of the 'family'.

The question is whether or not, or, to what extent the government has the right/authority to determine 'who' has the right to become a 'family' by way of 'marriage'. As I see it, any two consenting adults (subject to mental and bloodline limitations) should have the right to legally enter into a contract of 'marriage' for the purpose of establishing a 'family' unit. Any laws prohibiting that union would, in my view, violate the civil rights of the couple.

Marriages of 'convenience' are accepted by the government when they are solely for the purpose of gaining citizenship or medical insurance coverage. How can the government deny the right of marriage to any couple who wants to enjoy the 'conveniences' afforded to a legally married 'family'???

Dan S. November 25, 2009 at 2:47 pm

Sorry, Professor, I had not seen your most recent post until I clicked the submit button for mine. If this is a states' rights issue, could the federal government, if it chose to, overturn same sex marriage bans in individual states based on gender discrimination?

larry d. November 25, 2009 at 4:12 pm

I believe raising children is a central issue to many who oppose gay marriage. I also believe that many of those same people do think there is a magic formula when it comes to raising children or building a family, a formula they see in their religious doctrine or moral beliefs.

And of course, when people marry they do receive priveleges that unmarried people do not receive; otherwise gay marriage would not be the issue it is today.

On a fundamental level, societies have granted those privileges to couples in exchange for the desired social structure that such marriages establish. The question today is whether gay marriage leads to whatever desired social structure the government would like to encourage. Or possibly whether the government should be involved in encouraging social structure at all. I think not.

Dan S. November 25, 2009 at 9:30 pm

"I believe raising children is a central issue to many who oppose gay marriage. I also believe that many of those same people do think there is a magic formula when it comes to raising children or building a family, a formula they see in their religious doctrine or moral beliefs."
I accept your beliefs. On the other hand, I do not accept the possible assumption that they are the only beliefs capable of producing a functional 'family'. No single religious or non-religious group has been shown to be a clear winner in the arena of child rearing. Same for social, ethnic, racial, or economic groups.

"And of course, when people marry they do receive priveleges that unmarried people do not receive; otherwise gay marriage would not be the issue it is today."
I don't think marital privileges are the root of the resentment that many people voice on this topic. Otherwise, most marriages of 'convenience' would also be the subject of national uproar. I believe many of the opponents of same sex marriage are either extremely insecure or afraid of how they themselves will feel if a couple different from themselves has the right to establish a family through the process of marriage. I believe they may feel that such a union would 'cheapen' their own view of marriage. That is a shame. It not only shows a lack of respect for the beliefs of others, it tramples on the issue of equal rights for equal adults.

"Or possibly whether the government should be involved in encouraging social structure at all. I think not."
Then what is the purpose of the DOMA? Why not allow citizens to live their family lives without biased interference from any level of government? The federal government may not have the constitutional authority to regulate 'marriage', but it surely must have the authority to recognize and prohibit or abolish state laws that needlessly place the rights of one group over the same rights claimed by another group of equally human citizens.

Dave November 26, 2009 at 12:22 am

I guess we will have to file this in the agree to disagree file.

The voters have spoke in a number of states – 30ish? They do not agree that it is the same thing.

You are taking something that many people consider holy and allowing it to be replaced by something that many consider unholy.

If the problem is the legal rights that are bestowed upon people, then you should make an argument for civil unions. There is less resistance to civil unions.

Dan S. November 26, 2009 at 11:26 am

RE:"If the problem is the legal rights that are bestowed upon people, then you should make an argument for civil unions. There is less resistance to civil unions."

That is a logical resolution to the legal rights issue of same sex "family formation". I'm happy we have common/less adversarial grounds reached on this day of Thanksgiving. Peace.

Professor Will Huhn November 26, 2009 at 5:46 pm

All of our children are home for Thanksgiving. I am grateful for my family, and I wish the same happiness for all families.
Happy Thanksgiving to all of you!

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