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Federal District Court Rules DOMA Unconstitutional

by Professor Will Huhn on July 8, 2010

in Constitutional Law,Equal Protection,Uncategorized,Wilson Huhn

     Judge Joseph L. Tauro, of the Federal District Court of Massachusetts, has declared that the federal Defense of Marriage Act is unconstitutional under the Equal Protection Clause of the Constitution.

     Earlier today Judge Tauro handed down his decision in the case of Gill v. Office of Personnel Management.  The plaintiffs in the case – seven same-sex couples and three survivors of same-sex spouses, all of whom were lawfully married in Massachusetts – challenged the federal Defense of Marriage Act, which in part provides that the federal government will not recognize same sex marriages.  Specifically, the plaintiffs contended that just like spouses in hetersexual marriages they should be considered eligible for health-care benefits that are available to the spouses of federal employees; that they should be entitled entitled to survivorship payments under the social security program; and that they should have the privilege to file joint tax returns with their spouses. 

     The plaintiffs argued that DOMA should be evaluated under "strict scrutiny," a rigorous standard of review, because this law infringes upon fundamental rights and because gays and lesbians constitute a "suspect class."  Judge Tauro did not rule on that question; instead he found that the law failed to satisfy even the low-level "rational basis" test.

     Judge Tauro made two principal points: First, that only the states, and not the national government, have the power to define "marriage."  He asserts that the federal government has no authority in the field of domestic relations.  The text of the Constitution does not vest this power in Congress, nor has the federal government traditionally exercised the authority to define who is and who is not eligible to marry.  Second, Judge Tauro concluded that the only reason that the federal government had adopted this law was to harm the interests of gays and lesbians.  Congress disapproved of same-sex relationships, and so it prohibited persons in these marriages from qualifying for federal benefits.  The court found that this dislike or disapproval did not constitute a legitimate justification for the enactment of the law.  Judge Tauro quoted a phrase that has appeared in several decisions of the United States Supreme Court:

"the Constitution will not abide such 'a bare congressional desire to harm a politically unpopular group.'"

     I am in sympathy with the decision, but there are constitutional issues that Judge Tauro did not sufficiently discuss.  The most serious problem with the decision is that Judge Tauro does not adequately discuss the fact that DOMA does not impose a criminal punishment like the law criminalizing homosexuality that was struck down in Lawrence v. Texas; it does not even withhold protection from discrimination like the state constitutional amendment that was struck down in Romer v. Evans.  Instead, this law is most frequently applied to spending programs.  In this case the government is withholding a benefit, not imposing a punishment, and that often makes a world of difference in constitutional cases.  The government may not punish people for indecent speech, but it does not have to fund it.  National Endowment for the Arts v. Finley (upholding the denial of federal funding to a performance artist who performs in the nude).  Just a few days ago the Supreme Court ruled that even though the Christian Legal Society has a constitutional right to exclude gays and lesbians from membership, the organization does not have a constitutional right to receive funding from a law school.  Christian Legal Society v. Martinez. 

     On appeal, the government will argue that the federal law does not regulate who may marry and who may not.  Same-sex couples are free to marry under state law.  The government will argue that it is simply choosing not to fund certain types of marriages.  The closest analogy, the government will contend, is abortion funding.  Under Maher v. Roe, the government may not prohibit abortions in the early stages of pregnancy, but the government may choose not to fund them.  As in the case involving indecent speech, the government is free to make this choice for moral reasons.  Furthermore, even conceding the fact that the right to marry someone of the same sex is a fundamental right, the government will argue that the right to engage in indecent speech is a fundamental right and the right to obtain an abortion is a fundamental right – and the government does not have to fund those activities either.  When it comes to its actions under the Spending Clause, the government will argue, it is entitled to make judgments based upon moral considerations.

     The strongest argument in opposition to the government's position and in opposition to DOMA is that this law is defective under Equal Protection.  None of the other cases listed above – Finley, Maher, or Christian Legal Society – involved situations where one group of persons was being treated differently from other groups.  As to that point, Judge Tauro's opinion is crystal clear.  Once again quoting the Supreme Court, Judge Tauro says:

To say that all citizens are entitled to equal protection of the laws is âessentially a direction to the government] that all persons similarly situated should be treated alike.â

     The plaintiffs must argue that although the government, when it is allocating benefits, is entitled to treat certain activities differently than other activities for moral reasons, it is not entitled to treat groups of persons who are engaging in the same activity differently from other persons on the basis of "morality."  All married couples must be treated alike.


Joe Joe July 8, 2010 at 10:51 pm

Judge Joseph L. Tauro and his discussion to strike down the 1996 federal law that defines marriage as a union exclusively between a man and a woman. Another sad day in America, not much left anymore of the landscape that once was. Just shadows of the past and chaos ahead.

Quidpro July 11, 2010 at 4:22 pm

Thanks for the analysis, Professor. Your first point appears to be spot on. Under our federalist system, the regulation of marriage is left to the states. But the federal government can use a more restrictive definition for purposes of distributing federal benefits.

Your equal protection argument, however, falls short. The plaintiffs were not denied benefits on the basis of race, sex, religion or ethnicity. The law "discriminated" solely on the basis freely chosen actions. This the law does all the time.

Emily April 13, 2011 at 7:43 pm

Equal protection analysis has nothing to do with race, sex, religion, or ethnicity. Read the Fourteenth Amendment of the Constitution of the United States.

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