Defense of Marriage Act (DOMA)


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A Response to Dale Carpenter on the Second Circuit and Same-Sex Marriage

• October 23, 2012 • 11:40 am

I disagree with Dale Carpenter’s claim that the First Circuit’s ruling invalidating the Defense of Marriage Act is in any significant way “more limited and incremental” than the Second Circuit’s ruling. I have critiqued both rulings at length on National Review Online’s Bench Memos (First Circuit here and here, Second Circuit here) and will limit myself here to these observations:

1. Carpenter asserts that under the First Circuit’s ruling “a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.” Well, yes and no. Yes, only in the very limited sense that it’s equally true that under the First Circuit’s ruling the Defense of Marriage Act withstands ordinary rational-basis review. (See slip op. at 14 (“Under such a rational basis standard, the … plaintiffs cannot prevail”).)

What Carpenter’s phrasing obscures is his false premise that under the First Circuit’s ruling “ordinary rational-basis review” would even apply to “a state definition of marriage excluding gay couples.” As the First Circuit explains its heightened standard of “intensified” rational-basis scrutiny, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications” (p. 15). In support of its standard, the court notes that the Supreme Court “has now several times struck down state or local enactments without invoking any suspect classification” (p. 16 (emphasis added)). So under the First Circuit’s ruling, a state definition of marriage would be subject to “intensified” scrutiny.

The (badly confused) “federalism concerns” that the First Circuit invokes operate merely as a sort of plus-factor in how intensified scrutiny applies: in the court’s own words, a “closer examination of the justifications … is uniquely reinforced by federalism concerns” (p. 23).

Note also that the First Circuit recognizes that the “burden” that DOMA imposes on same-sex couples is much less than that imposed by a state law that prevents same-sex marriage (p. 18). So that difference cuts heavily against a state law’s surviving “intensified” review.

In sum, under the First Circuit’s ruling, state definitions of marriage would be subjected to “intensified” rational-basis scrutiny. Under the court’s reasoning, there is no reason to believe that they would survive such review. So both the First Circuit ruling and the Second Circuit ruling strongly imply a federal constitutional right to same-sex marriage that would override state marriage laws.

2. Both the First Circuit and the Second Circuit purport to invoke interests of federalism, but both in fact trample federalism.

The Defense of Marriage Act’s definition of “marriage” does not implicate any genuine interests of federalism. On the contrary, the definition of marriage for purposes of provisions of federal law is inherently a federal matter. (The First Circuit acknowledges that DOMA does not violate the Tenth Amendment or the Spending Clause (p. 20), and the Second Circuit similarly recognizes (p. 41) that DOMA doesn’t affect each state’s ability to determine whether same-sex couples can marry under state law.)

Properly understood, federalism leaves state matters to the states and national matters to the national government. The only genuine interest of federalism at stake in these cases is the ability of Congress to determine what marriage is for purposes of provisions of federal law.

The fact that the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law can’t possibly mean that constitutional considerations of federalism render DOMA suspect. As I explain more fully here, even the opponents of DOMA implicitly recognize that it is entirely reasonable for the federal government to use its own uniform definition of the essential components of marriage as the basis for distributing federal marital benefits (while choosing to accept state variants on incidental features).

3. One minor point: Carpenter states: “Eight federal courts have recently ruled that [DOMA] is unconstitutional; none have upheld it.” If Carpenter intends the adverb “recently” to carry over to the second clause, then his statement is correct. But as the House of Representatives’ certiorari petition in the First Circuit case spells out (on pp. 9-10), in an earlier wave of litigation, five or so federal courts rejected the constitutional challenge to DOMA.

The Second Circuit and Same-Sex Marriage

• October 22, 2012 • 5:04 pm

In 2007, after 40 years together, New York residents Edith Windsor and Thea Spyer were married in Canada. Two years later, Spyer died, leaving her estate to Windsor. But Windsor was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act prohibits federal recognition of same-sex marriages. On top of her grief, and the prospect of living her remaining years alone, the 83-year-old Windsor now faced a federal tax bill of $363,053 in inheritance taxes that married heterosexual couples do not have to pay. She brought an Equal Protection claim in the Second Circuit, which struck down the Act last week in Windsor v. United States. A cert petition is already pending in the Supreme Court.

In a flood of other cases, same-sex spouses have presented similar lawsuits involving everything from the denial of Medicaid benefits to burial beside a spouse in a veterans’ cemetery. The Defense of Marriage Act denies more than a thousand rights and benefits in federal law and excludes an estimated 100,000 married same-sex couples in the United States. The number is growing as more states recognize marriages between same-sex couples.

Eight federal courts have recently ruled that the Act is unconstitutional; none have upheld it. In the two circuits striking down the Act, the First and Second, the opinions were written by Republican-appointed judges. Second Circuit Chief Judge Dennis Jacobs, in particular, is well-regarded among judicial conservatives. The cases challenging the Act thus come to the Supreme Court with an undeniable momentum that spans the spectrum of judicial philosophies. That doesn’t mean that the Court will agree with the lower federal courts, but it does mean that these decisions will be taken seriously in way that a decision from, say, the Ninth Circuit alone might not be.

The two appellate courts offer the Supreme Court distinct routes to holding the Defense of Marriage Act unconstitutional.

The First Circuit, in Massachusetts v. U.S. Dep’t of HHS (2012), suggested the more novel but narrower path of the two. The court held the Act unconstitutional under the Equal Protection Clause because it trenches on the interests of a historically despised minority in a matter of traditional state regulation, the definition of marriage. This almost unprecedented federal regulation aimed solely at married gay couples, the court explained, justified somewhat greater scrutiny than ordinary rational-basis review. Applying that “rational-basis plus or intermediate scrutiny minus,” as Paul Clement memorably described it in oral argument in Windsor, the First Circuit held that the Act was not adequately tailored to serve the asserted federal interests in uniformity and “responsible procreation.” Under this ruling, the federal definition is unconstitutional but a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.

The Second Circuit’s opinion in Windsor trod a more analytically familiar but potentially more far-reaching path. The court held that discrimination based on sexual orientation itself warrants intermediate scrutiny. To reach that conclusion, it determined that gays and lesbians have suffered a long history of discrimination, that sexual orientation is unrelated to individual merit, that homosexuality is a “discernable characteristic [defining] a discrete minority,” and that gays lack the level of political power that would warrant leaving their legal protection entirely in the hands of legislative and electoral majorities. The dissent, written by a Clinton appointee, barely engaged this analysis except to say that heightened scrutiny for sexual-orientation classifications had been rejected by eleven other circuit courts.

The Second Circuit’s mode of analysis, examining what level of scrutiny should apply to classifications based on sexual orientation, is the more conventional of the two. Judge Jacobs makes a strong case for heightened scrutiny and does so in a more thorough and substantive way than the previous eleven circuit courts considering it. Still, the opinion swims against a strong current of precedent that may sweep it away in the Supreme Court.

If the Supreme Court does accept the Second Circuit’s heightened-scrutiny approach, moreover, it would be hard to see why state laws restricting marriage to one man and one woman could survive. Laws excluding gay couples from marriage would have to be substantially related to an important governmental interest, a test that would be difficult to satisfy given how loosely related the exclusion of gay couples from marriage is to promoting things like “responsible procreation” among heterosexual couples. That potentially sets up a head-on challenge to the laws of 44 states that do not recognize same-sex marriages. Indeed, one such challenge, to California’s Proposition 8 is already at the cert stage before the Court (although Perry raises the somewhat different question whether a state can withdraw recognition of same-sex marriages once it grants that recognition).

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.