Recent Challenges to the Federal Defense of Marriage Act and California's 2008 Proposition 8

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By Frank S. Berall, Esq.
Copp & Berall, LLP, Hartford, CT

* Copyright by Frank S. Berall, August 5, 2010.

The Unconstitutionality of the Defense of Marriage Act

In two Massachusetts' federal district court cases, the Defense of Marriage Act (DOMA)1   was held unconstitional.

In Gill v. Office of Personnel Management,2  the court held DOMA violated the Fifth Amendment's due process provision.3    In Commonwealth of Massachusetts v. U.S.,4   the court held DOMA violated both the Tenth Amendment5   and the Constitution's spending clause.6   California's Proposition 8 was held to violate the Fourteenth Amendment's equal protection provisions in Perry v. Schwarzenegger.7    

The 1996 federal DOMA precludes any federal recognition of same-sex marriages, stating "the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife."

Thus, same-sex couples are denied all federal benefits of marriage, even if the couple was married under the laws of the six states, including the District of Columbia or the 11 foreign countries permitting same-sex marriage.8  

The Gill plaintiffs, all with valid Massachusetts marriages, were seven same-sex married couples and three survivors. They contended the DOMA violated core constitutional principles of equal protection embedded in the Fifth Amendment's due process clause.

Defendants were various federal officials in their capacity as such. But the Commissioner of Internal Revenue was not named, nor did any documents filed by defendants include anything from the IRS; only from the Department of Justice's Civil Division. Furthermore, the plaintiffs' prayer for relief merely was that the court "declare DOMA unconstitutional as applied to" them.

Massachusetts, the plaintiff in the other case, contended that DOMA violates the Tenth Amendment, by intruding on areas of exclusive state authority, as well as violating the Constitution's spending clause which gives Congress power, "to pay the debts and provide for the . . . general welfare . . .," by forcing plaintiff to engage in invidious discrimination against its own citizens so as to receive and retain funds from two joint federal-state programs. On July 8, 2010, Massachusetts Federal District Court Judge Tauro (a President Nixon appointee) gave summary judgment favoring all plaintiffs in both cases. The government will almost certainly appeal these cases to the First Circuit within 60 days (until September 6, 2010, counting Saturdays and Sundays), while further proceedings are stayed.  No doubt the loser in the First Circuit will petition the United States Supreme Court for certiorari.

Although Gill's result has been stayed pending any appeal, it is doubtful that it can be relied upon in the interim. The court did not appear to hold DOMA unconstitutional on its face, nor even as applied to the Internal Revenue Code or other federal statutes. It has merely been struck down as applied to the Gill plaintiffs in Massachusetts.

A same-sex couple might try to file a joint tax return, citing Gill as authority, so as to avoid penalties if it is reversed on appeal. However, while the Gill plaintiffs would pay lower taxes, if permitted to file joint federal returns, this would not always be true of other same-sex married couples, who unlike these plaintiffs, do not have a major difference in income.  The Gill plaintiffs will pay less tax on a joint return than if they filed separately or if they were single taxpayers. However, for a couple who each have approximately the same income, there is a so-called marriage penalty. Thus, unmarried couples with approximately equal incomes pay a lower tax than if they were married.

Same-sex couples in Massachusetts and other jurisdictions recognizing same-sex marriage, should decide whether to file for income tax refunds for open years after their marriages, if this will actually result in lower taxes for them or, because of the marriage penalty, increase their tax liability.

Another unanswered question is whether Gill's "as applied" language applies to same-sex couples who married in Massachusetts or elsewhere, where same-sex marriage was valid at the time of their marriage, but then moved to a state not recognizing same-sex marriages.

The Commonwealth of Massachusetts case held that DOMA violates the Tenth Amendment, by intruding both on areas of exclusive state authority and the Constitution's spending clause, "by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds for two joint federal-state programs." Thus, DOMA induces Massachusetts to violate the Fourteenth Amendment's equal protection rights of its citizens.9   By imposing an unconstitutional condition on the receipt of federal funding, DOMA was held to contravene a well established restriction on the exercise of Congressional spending power, exceeding the scope of its authority thereunder.

Commonwealth also held intrusion of DOMA on a state's ability to define its citizen's marital status violates the Tenth Amendment. By refusing to recognize same-sex marriages, it held that DOMA directly imposes significant additional health care costs on states, increasing their burden for health care provided to same-sex spouses of state employees.

The California Proposition 8's Amendment to its Constitution to Bar Same-Sex Marriage has been Overturned

Perry, et al, Plaintiffs and City and County of San Francisco, Plaintiff—Intervenor v. Schwarzenegger, et al, Defendants and Hollingsworth, et al, Defendant—Intervenors,10   in an extremely scholarly 136-page opinion by United States District Chief Judge Vaughn R. Walker (an appointee of President Reagan, whose nomination had been delayed for two years, partly because of opposition from gay rights activists, since when in private law practice he helped the U.S. Olympic Committee sue a gay ex-Olympian who had created an athletic competition called the Gay Olympics), held California's Proposition 8 unconstitutional.

His conclusion pointed out that it "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license . . . does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriage on an equal basis, the court concludes that Proposition 8 is unconstitutional."

Protect Marriage, the coalition of religious and conservative groups sponsoring the ban, said it would immediately appeal to the Ninth Circuit. While Judge Walker rejected all arguments by sponsors of Proposition 8, he is considering whether to suspend his order, while the ban's proponents appeal. He has urged both sides to submit written arguments by August 6, 2010.

During 13 days of testimony and arguments, plaintiffs presented 18 witnesses. Academic experts testified about topics ranging from the fitness of gay parents and religious views of homosexuality to the historical meaning of marriage and the political influence of the gay rights movement. The defense called only two witnesses, claiming they did not need to present expert testimony, because the United States Supreme Court had never specifically upheld the right to gay marriage. The defense claimed that it was an experiment with unknown social consequences that should be left to voters.11  

Perry v. Schwarzenegger, et al, overturned California's Proposition 8's amendment to that state's constitution barring same-sex marriage, holding that it violated the Fourteenth Amendment's equal protection and the Fifth Amendment due process provisions. Regardless of the Ninth Circuit's decision on the appeal, application for certiorari will probably be filed.

Anticipating the defeat of Proposition 8, on August 3, lawyers for the coalition of religious and conservative groups that sponsored it in 2008 filed a legal brief asking Judge Walker to stay his decision so same-sex couples could not marry while an appeal was pending. They argued that "Same-sex marriages would be licensed under a cloud of uncertainty, and should [their] proponents succeed on appeal, any such marriages would be invalid."

The U.S. Supreme Court could decide both Massachusetts cases overturning the federal Defense of Marriage Act (the DOMA) before California's Perry case, since it takes time for cases to move through their respective circuits, especially if Perry's appeal period is extended.

Justice Kennedy and the four conservative Justices 12  might overrule Perry, which was decided solely on Fourteenth and Fifth Amendments' equal protection and due process grounds. They might consider that unless there is a "suspect classification" (such as race), California's ability to discriminate should be tested on whether there is any rational basis for the discrimination. They might disagree that there is none, since whether to confer the benefits of marriage is a traditional state prerogative. Thus, their support for the Tenth Amendment might incline them to let California's Proposition 8 stand. If so, this would not reverse California's electorate, but would overrule Perry's conclusion that the Fourteenth Amendment renders Proposition 8 unconstitutional.13 

If the Supreme Court accepts certiorari for both the California and the two Massachusetts cases, they might be argued at the same time. Then either both of them could be decided in favor of or against same-sex marriage or there might be conflicting decisions. Their outcome will depend upon the Supreme Court's composition then. If Justice Ginsburg retires or dies while the Democrats still hold the Presidency, her replacement will probably have similar liberal leanings.

If no other changes occur in the Supreme Court's composition, a five to four decision is probable. The four conservatives will probably vote against same-sex marriage. Justices Sotomayor, Kagan, Breyer and Ginsburg (or her replacement) will probably vote to uphold it. Thus, the key vote will be Justice Kennedy. It is hard to predict how he will vote and thus how the Supreme Court will decide these gay marriage cases. However, his opinion in Lawrence v. Texas14  affirming some protection for sexual orientation, may be an indication.

The political complications created by Gill, Commonwealth of Massachusetts and Perry may have some influence on the 2010 fall elections. Advocacy groups on both sides plan to make same-sex marriage an issue. California's largest lesbian, gay, bisexual and transgender political action committee is raising money to elect a governor and an attorney general to refuse to appeal the ruling. Presumably they will support Democrat Attorney General Brown, who is running for governor, in view of his known favoring of same-sex marriage.

There is some Republican concern that their chances of winning back one or both Houses of Congress may be hurt as a result of the three same-sex cases, especially Perry.

For more information, in the Tax Management Portfolios, see Horwood, Zaluda, Wolven and Hudgins, 813 T.M., Estate Planning for the Unmarried Adult .

 1 1 U.S.C.A. §§ 1, 7 and 28 U.S.C.A. §1738C, et. seq.


 2 Civil Action No. 09-10309-JLT, Case 1:09-cv-10309-JLT (7/8/10).


 3 U.S. Constitution, Am. V. "No person shall be . . . deprived of life, liberty or property without due process of law; . . ."


 4 Civil Action No. 1:09-11156-JLT, Case 1:09-cv-11156-JLT, Document 58 (7/8/10).


 5 U.S. Constitution, Am. X. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


 6 U.S. Constitution, Art. 1, §8's first clause gives Congress the "Power to lay and collect taxes . . . to pay the debts and provide for the . . . general welfare of the United States . . . ."


 7 No. C 09-2292 VRW (N.D. Cal. 8/4/10).


 8 Massachusetts:Goodridge v. Department of Public Health, 440 Mass., 798 N.E. 2d 941 (2003).

 Connecticut:Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008), followed by Connecticut P.A. 09-13, §1; 15.

 Iowa: Varnum v. Brien, 763 N.W.2d 862 (2009).

 Vermont: VERT. STAT. ANN. § 1a, et seq.

 New Hampshire: N.H. R.S.A. 457; 1a

 District of Columbia: D.C. Code § 46-401(a)(Supp. 2010).

  Netherlands: Wet van 21 December 2000 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van het huwelijk voor personen van hetzelfde geslacht (Act to open marriage for persons of the same sex), effective April 1, 2001.

 Belgium:  Loi ouvrant le marriage des personnes de meme sexe et modificant certaines dispositions du Code civil, Art. 143 of Feb. 13, 2003.  This permits two persons of the same or different sex to contract a marriage.

 Canada:  The Civil Marriage Act, S.C. 2005, c. 33, July 20, 2005.

  Spain: LEY 13/2005, de 1 de julio, por la que se modifica el Código Civil en materia de derecho a contraer matrimonio.

  South Africa: Civil Union Act (No. 17) of 2006.

 Sweden: Government Bill Aketenskapsfragor (Marriage issues), 2009/09:80 at 222. Regeringen. Se.

 Norway: The Marriage Act, part I, Ch. I, § 1, amended January 1, 2009.

 Iceland: Citation not located.

 Portugal: Lei No. 7/2010 de Maio-adopta medidas de Proteccao das unioeos de facto. Law permitting same-sex marriage signed in May 2010.

 Mexico City and several provinces in various Latin American countries:  Citations not located.

 Argentina: Passed by the legislature July 16, 2010.  Wall St. Journal, p. A13 (7/16/10). Citation not located.



 9 U.S. Constitution, Am. XIV, §1 says, "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."


 10 No. C 09-2292 VRW (N.D. Cal.).


 11 Portions of the above are quoted from Judge Walker's opinion and other parts have been condensed and edited from a report by the Associated Press, (8/5/10).


 12 Chief Justice Roberts, Justices Alito, Scalia and Thomas.


 13 The above two paragraphs were based on suggestions by Attorney Thomas C. Carey, a member of the Massachusetts and New York Bars and a partner in the Boston law firm of Sustein Law.


 14 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508, 71 USLW 4574 (2003).