Berman & Asbel, LLP

Fed Court strikes US law discriminating against same-sex couples - part 1

In cases that I have been watching, U.S. District Judge Joseph Tauro in Massachusetts issued rulings striking down part of the federal Defense of Marriage Act (DOMA).  At issue was the part of DOMA which defines for purposes of the federal government that a marriage is a union of a man and a woman.  Massachusetts is one of several states which has legalized marriage of people of the same sex.  The existence of DOMA created situations in which there were couples who were considered to be married by the state government of Massachusetts but not married by the federal government.

The first case was Nancy Gill and Marcelle Letourneau et al. v. Office of Personnel Management et al. In that case, same-sex couples who married under Massachusetts law sued the federal government because they were denied the ability to add or to include their spouses as beneficiaries for various programs of the federal government such as health insurance for federal employees and Social Security benefits and other benefits to which a spouse is generally entitled.   Finding no dispute as to the facts in the case, Judge Tauro considered and granted to plaintiff couples summary judgment in their favor.

The Court ruled that DOMA as applied in this case violated the Plaintiffs' rights under the Equal Protection Clause by finding that DOMA has no rational relationship to any legitimate federal government objective.  The asserted objectives in the Congressional record for DOMA were:  (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  However, in this litigation, the federal government abandoned these reasons as justifications for DOMA.  The Court noted that recent studies indicate that children raised by same-sex couples were just as likely to be healthy and well-adjusted as children raised by heterosexual couples but even assuming that there was some difference, the Court stated that nothing about DOMA would encourage heterosexuals to marry and have children and a desire to encourage heterosexual couples to marry did not justify denying rights and benefits to same-sex couples.  Judge Tauro quoted from an opinion by Supreme Court Justice Scalia and stated that a desire to promote procreation is not a legitimate reason to deny benefits to same-sex couples because, as Justice Scalia wrote in his dissent in Lawrence v. Texas, ability to procreate is not and never has been a requirement for getting married in any state in this nation.

Judge Tauro also noted that DOMA cannot encourage heterosexual marriage because the Plaintiffs in question are already married to people of the same sex.  Further, denying benefits to same-sex married couples will do nothing to make marriages of opposite-sex couples any stronger.   The Court acknowledged that preservation of public resources is a legitimate objectives but it was not legitimate to do so by this sort of classification.

After abandoning the reasons Congress had stated for passing DOMA, the federal government's argument was that DOMA was somehow intended to preserve a status quo on a contentious issue until there was a national consensus.  Judge Tauro found that this was contrary to the long established rule that marriage status is determined by states.  Judge Tauro noted that in the years before the Supreme Court held that racial laws on marriage were unconstitutional and some states prohibited interracial marriages while most states did not have such a prohibition, the federal government never attempted to enact a statute on the racial characteristics of a married couple.

Similarly, Judge Tauro essentially said that the federal government had no business intruding into a question that has always been the domain of the states.  Judge Tauro stated that it should not matter that only a minority of states allow certain couples to be married - the federal government is supposed to accept that if a state says a couple is married, then they are married and it is not for the federal government to set up its own separate standard.  While the federal government has a legitimate purpose in requiring certain benefits be only for spouses, it is not for the federal government to distinguish between spouses of the same sex and the opposite sex where a state has already determined that such persons are married.

This ruling is a huge development in marriage equality but it is not complete.  This case is only about DOMA and its application to federal regulations and programs.  Under this ruling, same-sex couples who are married would be eligible to file joint federal tax returns, survivors can claim Social Security benefits and other important rights.  This case does not address the part of DOMA which says that other states which have not legalized same-sex marriage must honor the marriage certificates of couples obtained in states which do allow same-sex marriage.  That will be another case.  It is also likely that this ruling will be appealed and ultimately end up in the Supreme Court.

In part 2 of this posting, I will discuss the companion case, Commonwealth of Massachusetts v. Sebelius in which the Commonwealth of Massachusetts itself sued the federal government claiming violation of its state's rights.

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