It’s been a long year of ups and downs for marriage equality, and it’s easy to get frustrated with the seeming “two steps forward, one step back” progress that we seem to be making.
But, this evening, I want to go back to the first federal marriage challenge brought this year. The case comes from Massachusetts and was brought by the Gay & Lesbian Advocates & Defenders, which was successfully brought the Goodridge challenge that allowed for marriage equality in Massachusetts.
Gill v. Office of Personnel Management et al., challenges the ability of the federal government, through Section 3 of the Defense of Marriage Act, to discriminate among those couples who are legally married in Massachusetts. Section 3 of DOMA limits the federal definition of marriage and spouse to only opposite-sex couples. The Amended Complaint in Gill (covered here) alleges that such a limitation is unconstitutional.
This past week, GLAD filed its opposition to the government’s Motion to Dismiss (covered here), as well as moving for summary judgment in the plaintiffs’ favor. It is clear from this filing that GLAD is seeking a quick resolution of this case, perhaps in an attempt to stay ahead of the Perry v. Schwarzenegger California Proposition 8 challenge in the ever-winding process up through the federal courts. The GLAD brief argues that “these motions should be decided together and should be decided now.” Gill, Memo in Opposition to Defendants’ Motion to Dismiss and in Support of Plaintiffs’ Motion for Summary Judgment (pdf), at 11.
GLAD gives three reasons why the discrimination it alleges should be subject to a more searching inquiry — or “heightened scrutiny” — by the court:
Because DOMA establishes a conflicting and supervening federal definition of marriage, in contravention of the States’ constitutional sovereignty over marriage, it merits particularly close review. Heightened scrutiny also is warranted because DOMA burdens Plaintiffs’ fundamental interests in the integrity of their existing familial relationships and because it impermissibly targets gay men and lesbians.
Id., at 1. These reasons create a three-pronged basis for the court engaging in a more searching inquiry of this law. Of particular interest is the way GLAD addresses the “immutability” prong of heightened scrutiny for classifications based on sexual orientation. The Plaintiffs argue, not that sexual orientation is a genetically based, unchangeable reality, but that it “Is a Defining Characteristic of a Person’s Identity.” GLAD goes on:
Moreover, sexual orientation is extremely resistant to change. . . . As with classifications such as religion and alienage, which are treated as “inherently suspect,” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976), this more than satisfies the requirement of “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen, 483 U.S. at 602.
Id., at 26. This, to me, seems to be the smartest approach to ensuring the fullest possible protection from sexual orientation and gender identity discrimination in the long run, and it’s good to see GLAD pursuing that route. The other requirements to be considered in finding if heightened scrutiny applies to classification-based legislation are: (1) political powerlessness, (2) a history of discrimination and (3) a finding that the factor is unrelated to an individual’s ability to contribute to society.
If the court does not find that such a searching inquiry — on any of the three grounds — is justified, then it would apply a “rational basis” test, which usually — though not always — results in government action being found to be constitutional.
The plaintiffs in the case are people who have been impacted by distinctions in the tax code or by virtue of the fact that their spouse is or deceased spouse was an employee of the federal government. GLAD does not leave the claims at that, though, noting:
Apart from these concrete financial losses, many Plaintiffs have also faced additional harm from the confusion and uncertainty that arise from having their marriages not “count” for many purposes, causing anxiety in everyday situations and inviting discrimination by private parties. For example, after his husband passed away, Plaintiff Lewis-Kendell repeatedly contacted the company holding his deceased husband’s mortgage. However, despite repeated efforts over a number of months, the company refused to talk to him and seemed incapable of understanding that he was the mortgagor’s widower.
Id., at 8. It is this sort of situation that can — and should — be used to show a more complete story of the ways in which DOMA allows for discrimination against same-sex couples.
Importantly, GLAD does not give up the argument that Plaintiffs should still succeed even under a rational basis review, which requires only that the government provide a legitimate state interest to which the restriction — in this case, a federal definition of marriage limited only to opposite-sex couples — is rationally related. GLAD argues:
The post-hoc rationalizations that the government advances for DOMA – that it “preserves the status quo,” furthers an interest in “incremental[ism],” and preserves “consistency” by ensuring that all gay and lesbian people are treated alike, whether they are married or not – are insubstantial and counterfactual. And the reasons Congress actually articulated when it enacted DOMA – reasons the government (wisely) declines to defend here – are either nonsensical or reflect outright animus against gays and lesbians.
Id., at 11-12. Most notable in GLAD’s response to the alleged government justifications for DOMA is its sharp and biting analysis of the argument that DOMA is an “incremental” response to changing conditions:
To begin with, there is nothing “incremental” about DOMA. It is a permanent ban on federal recognition of marriages of same-sex couples. It does not sunset or provide for revision based on changing policies in the States. Nor does it afford some partial recognition to same-sex couples. Defendants have confused the President’s stated support for DOMA’s eventual repeal . . . with what the law itself actually does. The fact that some in Washington now support repeal does not transform DOMA into something other than a complete and permanent refusal to treat Plaintiffs and other married same-sex couples as married for any federal purpose.
Id., at 31. One of the more interesting arguments made by the federal government in its defense of DOMA was that Plaintiffs’ lawsuit challenged restrictions of the receipt of federal benefits based on marital status — not the right to marry itself. GLAD comes back at this too-cute-by-half defense directly:
Defendants’ assertion that heightened scrutiny is unwarranted because “there is no right to receive federal benefits on the basis of . . . marital status,” . . . misses the forest for the trees. DOMA does not merely deprive Plaintiffs of discrete selected federal “benefits” (although it does), it sweeps so broadly and indiscriminately as to effect a virtual change of their legal status – from “married” to “single.” In so doing, it strips Plaintiffs’ closest familial relationships of much of their legal meaning, depriving them not only of the multitude of rights and benefits that accrue to marriage under federal law, but also of the unique public validation, social recognition, respect, support and private and personal value that come with marriage.
Id., at 21. This is an argument that DOMA constitutes a badge of discrimination against same-sex couples, the effect of which is far greater than its terms (as referenced by the mortgage company difficulties that I pointed out above). I was reminded, when reading this, of the discussion of the “badges and incidents of slavery” in the Civil Rights Cases, and was struck by a line from Justice Harlan’s dissent:
If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.
Civil Rights Cases, 109 U.S. 3, 62 (Harlan, J., dissenting).
The Department of Justice will now have to reply to the Plaintiffs’ opposition to its Motion to Dismiss and respond to their Motion for Summary Judgment. GLAD will then have one last opportunity to reply to the DOJ’s response to GLAD’s Motion for Summary Judgment.
A couple more law dork-y items can be found below the jump.
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For the real law dorks, I’ve not before seen argued this idea, that there could be a constitutional problem with the fact that DOMA now has the effect of “repudiat[ing]” the laws of some states “while vindicating the laws of others”:
Through its sheer breadth, DOMA in substance, if not in form, arrogates to the federal government a substantial portion of the power – previously exercised only by the States – to define eligibility for marriage and render decisions regarding marital status. Moreover, it does so in a manner that repudiates the family law of certain States while vindicating the law of others, which raises additional constitutional concerns. Cf. Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2512 (2009) (law that “differentiates between the States” must be justified by a showing the difference is “sufficiently related to the problem it targets” given the “historic tradition that all States enjoy equal sovereignty) (internal citation omitted).
Id., at 18.
Finally, GLAD argues that, at the least, the federal government’s interpretation of the FEHB, the federal health insurance program, is incorrect and should allow for same-sex couples to enroll. GLAD argues:
Defendants contend that the FEHB Plaintiffs are not “spouse[s]” due to DOMA, and therefore cannot be “member[s] of the family” pursuant to 5 U.S.C. § 8901(5). . . . This reading of the statute is mistaken.
Although the definition of “member of family” in the FEHB statute contains an enumeration of covered individuals, both the House and Senate Reports specifically note that the phrase is defined “to include” the enumerated individuals. FEHB H. Rep. at 6, 1959 U.S.C.C.A.N. at 2919; S. Report 86-468 (July 2, 1959) (“FEHB Sen. Rep.”) at 20. Defendants’ resort to the statutory interpretation maxim of “expressio unius est exclusio alterius” to exclude married same-sex spouses . . . implicitly acknowledges that the scope of coverage under the FEHB statute is ambiguous.
Id., at 41-42.
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Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, contributes regularly to Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found
Nicely job by GLAD, especially on the comparison to religion in terms of aspects of identity that may not be genetic or literally unchangeable, but that are fundamental to identity even if not hold by the majority. Though frankly I’ve always been puzzled as to why religion necessarily deserves special protections either.
I think this is a hugely better case than the Prop. 8 challenge. As I’ve said in comments here umpteen times, our constitutional tradition has always allowed for the states to define marriage as they wish (so long as they do not violate the 14th amendment) while the federal government stays out of marriage definitions and simply applies the definition for the state in which one resides. So far as I know, this is the first instance of a full-blown state having its definition of marriage superseded by a federal definition.
It’s also the rare instance in which Constitutional logic is coupled with good political strategy, since there will be much less fuss from SSM opponents if the federal government continues to leave the matter to the states than if the courts attempt to mandate which marriages the states are required to recognize.
“It’s also the rare instance in which Constitutional logic is coupled with good political strategy, since there will be much less fuss from SSM opponents if the federal government continues to leave the matter to the states”
You’re the lawyer, I won’t argue the logic with ya, or the relative chances of success of each of the suits.
But from a political strategy point of view, a win in Perry would be, by this logic, less undesirable than a win in Loving would have been at the time. I’ve rarely heard it argued, these days, that Loving should have left marriage to the states.
Moreover, if the only measure of the quality of a strategy is the amount of fuss its opponents raise, perhaps we should just give up the fight for rights completely.
You want to run with an incrementalist approach, go for it. But I personally won’t live long enough to see that process complete even from a legal standpoint, and that is never, ever going to be acceptable to me, nor many other members of our community.
Equal Protection before I’m dead: Is that so much to ask?
Joe,
Loving states that any state that restricted marriage based on the races of the prospective spouses was violating the 14th Amendment and enforcing a system of racial hierarchy that is unconstitutional. So far as I know, none of the current litigation is arguing that a state that has never recognized SSM is therefore violating the 14th Amendment and enforcing an unconstitutional hierarchy. Most of the courts that have said SSM recognition is necessary, have grounded their decisions in their *state* constitutions; off the top of my head, I can’t think of one that grounded it solely in the federal constitution. The Loving decision was entirely about the federal constitution.
Prior to Loving, the Court had already established race as an impermissible basis on which the state could distinguish among citizens, and Congress had passed the Civil Rights Act statutorily barring racial discrimination even in the private sector. We haven’t seen the gay Brown v. Board, much less the gay Civil Rights Act, yet. Brown v. Board brought the backlash 13 years before the Supreme Court ruled on Loving; we went through massive resistance in Southern states, including some counties shutting down their public schools entirely to avoid integration. By the time of Loving, the political debate was pretty much over; people of color were accepted as having the same rights — to attend the same schools, drink from the same fountains, work the same jobs — as white people. Only 16 states still barred interracial marriage at the time of Loving.
Unfortunately, that political debate is not over with regard to sexual orientation equality. ENDA still needs to pass; more states need to pass SSM. If the Supreme Court at this point declared that SSM was constitutionally required in every state, I think it would be possible to pass a Constitutional amendment slapping that decision down, with language like “This Constitution shall not be interpreted to require same-sex marriage.” Such an amendment wouldn’t foreclose the states or even Congress from passing SSM; it would simply remove the courts’ ability to declare SSM a federal constitutional right. But such an amendment would be a serious blow to the Court’s standing, particularly now when the right already wants to treat the Court as somehow illegitimate.
Thanks, I really appreciate the response.
I don’t quite believe, personally, that the country could muster a federal Constitutional amendment, but …. that may be naive on my part, and I very much respect very much the danger involved.
Quick question: did you expect that the anti-SSM forces could muster, in California and Maine, no less, sufficient numbers to overturn SSM at the ballot box?
Near the election, yes, I thought there was a fair chance we’d lose here in CA, and a very good chance we were going to lose in ME.
The usual solid analysis, but I am far more worried about THIS Supreme Court ruling the exact opposite, and declaring SSM unconstitutional, than the reverse.
And do you really think, without a true tidal wave of reaction that might have us all exploring real estate availability in Canada, that an anti-SSM Amendment could get a simple majority in either house, not to mention the required majorities in both houses and in the legislatures. The fundies have been trying for years to pass anti-choice, pro-school prayer, and ‘parental rights’ Amendments — the last is the really scary one — and have never come close.
If every state that has a DOMA applies for a convention on the issue, that’s enough to start the ball rolling. So yes, I think it’s quite plausible that an FMA could get off the ground if the legal strategy overreaches. It would be a close-fought and risky thing
But calling opponents “Fundies” and dismissing the risks has worked such a treat for the electoral efforts of the SSM movement so far. No need to reconsider strategy now.
“starts the ball rolling”, perhaps. But 30 isn’t 37, and even if you can get every single state that has ever enacted such a ban on a state level to do so now, at a later date (and I don’t think that’s obvious), you still have to win in 7 more states.
Heck, I said I might be naive. But that looks like a big ol’ strectch by any analysis.
The ‘new Constitutional Convention’ that would be called if your idea came about would not — and could not — be limited to any single issue. Check out your Constitution. It would be authorize to re-write the whole document, and because of this, would be even less likely to pass. Of course, were it to happen, Vancouver, here I come. But there’s never been any movement towards it at all, and when the idea gets brought up, people get reminded of just what I’ve pointed out.
Agreed that a whole Constitutional Convention is laughably unlikely. Why would anyone bother?
The amendment wouldn’t have to go as far as the one the GOP was pushing 2004-06 and favored by Bush, which would have barred SSM from ever happening anywhere in America by any means. I’m saying that if the Supreme Court ruled that SSM was a federal constitutional right, there’s enough people who are vaguely pro-LGBT-ish (the Barack Obamas, frankly, who oppose Prop. 8 and favor civil unions but get squeamish about the actual word marriage) that an amendment specifically barring the Court from reading a SSM right in the Constitution would have a decent chance in Congress. That Democratic majority is full of Blue Dogs who are no further to the left on this issue than the president is.
It’s a lot easier to say “Let’s not make SSM a federal constitutional issue” than to say “SSM should never be possible for anyone anywhere, even if they got a popular vote in their own state to favor it.” The amendment the Republicans were pushing a few years back made a joke of their so-called federalism because it would overrule the states — which traditionally have been able to define marriage and have the federal government accept those varying definitions (first cousins? 13 year olds? states can decide). That amendment was never going to have much of a chance, because only the out-and-out haters could favor it.
There was no principled conservative ground for amending the U.S. Constitution to change how marriage had been dealt with in our system of divided powers. In contrast, there are a lot of non mis-homoist (i.e. gay-hating … I find the word “homophobe” inaccurate because it literally means fear when these people’s sentiments are closer to hatred) reasons to question whether the Supreme Court should be finding a right to SSM in the Constitution. And you’d hear every one of them (plus all the mis-homoist ones) if the Court at this point rules on SSM.
(I don’t see how the Court could say that SSM is *un*constitutional — there’s absolutely nothing in the text about marriage, and the little there is about sex/gender is for equality. At most, the Court could declare that there is nothing in the federal constitution that commands SSM, which would change nothing since all the state court decisions for SSM thus far have had independent state constitutional grounds for why SSM is required.)
Thanks, very much appreciate the analysis.
I keep seeing comments (here and elsewhere) that a loss would mean that same-sex marriage would be “unconstitutional.” I think the better way to look at it is that if we lose in Perry, there will be no constitutional protection for same-sex marriage. To get there, I think they’d have to overturn Romer and Lawrence (though I am not a lawyer).
We know what the country looks like with no guarantee of constitutional protection for same-sex marriage. We’re living in it.
And even if the court upholds bans on same-sex marriage, it won’t be forever. In 1883, the Court in Pace v. Alabama held that states could prohibit interracial sex. It took a long time for that one to get overturned, but it did. Ironically, the civil rights leadership didn’t want to back the Loving case. They felt it was a distraction from the movement’s real goals.
I think it was reasonable for the civil rights movement not to be hugely concerned about a white man (Mr. Loving) who went to jail after being charged in Virginia with fornication (because his marriage to a black woman was not recognized, it was non-marital sex). As far as the day-to-day lives of black people were concerned, it was a lot more important to actually get Brown v. Board enforced and to get measures like the Fair Housing Act. Interracial marriages aren’t always popular with people of color either, though obviously it has less to do with racial supremacy and more about concern with preserving the minority cultures.