Dumb… and DOMA

A sampling of today’s headlines:

(1) DOMA RULED UNCONSTITUTIONAL BY FEDERAL APPEALS COURT

(2) DEFENSE OF MARRIAGE ACT OVERTURNED!

(3) DOMA STRUCK DOWN BY FIRST CIRCUIT

(4) FIRST CIRCUIT SHOOTS DOWN DOMA

To which a responsible legal blawgger must footnote:

(1) “Ruled,” yes. We’re not sure what it all means yet.

(2) Well, kind of. It’s complicated.

(3) The smallest federal circuit, the fightin’ First has to be one of the only places where you’ll routinely hear “New England” and “Puerto Rico” used in the same sentence.1

(4) But not really until the Supreme Court actually rules on the whole thing for everybody all at once.

I feel for legal reporters every time one of these big non-SCOTUS federal appellate cases comes down. I’d bet that about a quarter of the attorneys currently practicing in America don’t even know which federal circuit they are in (let alone exactly what a circuit court does), so it’s not much more fun explaining it to the public.

Here goes.

The First Circuit’s decision in Massachusetts v. U.S. Dept. of Health and Human Services, No. 10-2204  (1st Cir. 5/13/12), aff’g Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) is an exciting step forward toward true marriage equality in the United States. But it’s also not. It’s complicated.

Background

This appeal arises from two different actions, both challenging different applications of the Defense Against Marriage Act (”DOMA”) which the plaintiffs argued improperly denied federal economic benefits (including Social Security death benefits, tax advantages, and Medicare payments to the Commonwealth of Massachusetts) reserved for married couples.2

The Defense of Marriage Act was rushed through Congress in 1996 and signed by a President who had (as we would later learn) quietly redefined his own marriage with some help from a White House intern the year before. In short3, DOMA defined marriage for all federal purposes as “only a legal union between one man and one woman.”4

For as much as this may sound like little more than a rhetorical victory for proponents of “traditional marriage,” I can’t think of a shorter law that has had a longer reach. From annual income taxes to military death benefits to visas for non-citizen spouses5, it turns out that federal agencies are all up in the business of married couples. There are more than one thousand individual federal statutes which specifically mention marriage. In one swoop of the President’s pen, DOMA ensured that none of them would acknowledge (let alone protect) any union other than one man and one woman.

Massachusetts was the first jurisdiction in the U.S. to recognize full marriage equality6 at the state level in 2004’s historic Goodridge v. Dept of Public Health. It is no coincidence that the Commonwealth is now the lead plaintiff in the most important anti-DOMA appellate case to date, arising from a 2010 federal district court ruling.7

Before I get into what this decision is all about, keep in mind what it is not about. The central issue in this case is not about “legalizing” same-sex marriage nationally, but merely asking the federal government to recognize marriages already recognized by state law. Its refusal (pursuant to DOMA) to do so to date has caused heartbreak (deportation and visa denial of non-citizens legally married to U.S. citizens), financial hardship (denial of survivor benefits from military service, Social Security, etc.), and any number of other evils large and small for decent people trying to make lives for themselves in the increasing number of states to have embraced marriage equality. (The decision also does not touch upon DOMA’s controversial provision forbidding states from recognizing each other’s same-sex marriages.) If this is an “activist” decision8, it is about as modest as anything of that description could possibly be.

Eh… tl;dr. Can you give me enough to sound smart at a cocktail party?

Sure! I mean, I only just read this thing along with everyone else, but here are my initial impressions:

(1) No matter what you think of it, DOMA was a rush job….

“The entire statute… must–having only two operative paragraphs–be one of the shortest major enactments in recent history,” Judge Boudin writes. He goes on throughout the opinion to complain that the statute was rushed through with “minimal hearings,” was entirely “lacking in formal findings” and “devoid of the express prefatory findings commonly made in major federal laws,”; perhaps worst of all, it was railroaded through after “only one day of hearings” with no testimony whatsoever provided as to its possible implications for “the numerous federal programs at issue.” Indeed, Boudin notes with a certain sort of New England-y laconicism, “[s]ome of the odder consequences of DOMA testify to the speed with which it was adopted.”

(2) “…but only the Supreme Court can finally decide this unique case.”

This is a constant theme, both implicit and explicit, underlying every paragraph of this decision. While all published appellate rulings are drafted in view of an inevitable appeal, Boudin is actually directly addressing the Supreme Court here in a way that I’ve never quite seen before:

But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even it it approves the result will formulate its own explanation).9

It is also notable that almost all of the precedents cited are SCOTUS decisions (rather than looking at what the other circuits have said about related issues), and the ruling itself has been voluntarily stayed by the First Circuit pending review by the court of last resort.10

(3) Money is no object.

Will repealing DOMA cost the federal government more money? Maybe, or maybe not.11 It really doesn’t matter. Rights are rights, and the whole point of a disadvantaged minority group taking its case to a federal court is to be sure that rights which may not otherwise be protected by the voting populace in a democratic society are ensured equal treatment under the law.12

(4) DOMA is about adults, not kids.

“But what about the children!?” has always been an easy fallback, but Boudin cleanly disposes of it in a single paragraph. DOMA is about marriage, and nothing else. Massachusetts and other states recognizing marriage equality are free to permit same-sex parents to adopt children or employ surrogate mothers, with or without a federal definition of marriage.

(5) States can still do it for themselves.

While specifically dodging Section 2 (DOMA’s attempt to override the Full Faith and Credit clause of the U.S. Constitution), this decision reiterates the obvious point that the federal government’s repeal of DOMA would not force anything on anyone. It would simply respect existing state law.

(6) But wasn’t Congress only attempting to “temporarily freeze” the possibility of marriage equality “to reflect” on the situation?13

No. They weren’t. Unless you just ate that pint of Ben & Jerry’s to “temporarily store it” somewhere until you cleared up some freezer space. Have you even read this three-paragraph statute? Go away.

(7) “Moral disapproval” is not, in and of itself, an appropriate basis for legislation. But don’t hate the haters–hate the game!

In his search to find any basis for DOMA in the Congressional record (which is, to make the point yet again, unusually scarce here), Boudin cites a number of statements made by elected representatives on the record that homosexuality is “morally wrong” and DOMA was intended as a “moral disapproval” of its possible recognition by the federal government. In view of the Supreme Court’s 2003 decision striking down all state sodomy laws and other post-DOMA rulings on LGBT rights, Boudin somewhat cryptically notes that while “moral judgments can hardly be avoided in legislation… [subsequent cases] have undercut this basis.” He then goes on to specifically criticize the plaintiffs’ allegation that “DOMA’s hidden but dominant purpose was hostility” to openly gay Americans and gives Congress the benefit of the doubt in finding that “the many legislators who supported DOMA acted from a variety of motives”–and only “a small group” of these were openly hateful about it.

Interesting. And perhaps just a little more diplomatically than I would have put that.

(8) Strike 3! (Kind of.)

The First Circuit has struck down DOMA’s cold, angry heart: the definition of marriage contained within Section 3. But this decision is stayed until the Supreme Court can review it, which will be no sooner than next year at the earliest.

(9) Bonus! How did they get there? (Optional reading for non-lawyers.)

Appellate nerds will note that I have not mentioned this decision’s rather unusual sidestepping of the usual equal protection analyses which are supposed to be conducted by higher courts in these cases in favor of something which Boudin casually refers to as “scrutiniz[ing] with care.” As opposed to the familiar “strict scrutiny,” “intermediate scrutiny,” “intermediate scrutiny with bite,” and the other standards tailored by the Supreme Court in recent years, this apparently new standard may be immediately distinguished by the fact that it does not exist. It’s a strange sort of crepuscular dodge which allows the First Circuit to hold to its traditional stance that sexual preference is not necessarily a “suspect classification” for equal protection purposes. (This kind of caution is wise under the circumstances, but I still can’t see this as anything but a missed opportunity.)

It seems to me that while the 1st is leaving wide latitude for the Supreme Court to overrule this part of the decision (perhaps even with some small gratitude), the true foundation of the ruling is in federalism and Tenth Amendment principles–the idea that states should have the right to decide certain issues for themselves in matters where the federal government has no clear overriding interest. While Boudin concedes that the federal government certainly has some reason to care about the definition of marriage, the panel ultimately finds that the burden on states such as Massachusetts is simply too great and that Congress was simply trying to “put its thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”

There is a lot more to say about the underlying reasoning of this decision, but I think it really deserves its own post. And I’ll leave that to an actual Constitutional lawyer who is not attempting to analyze this ruling on the day it was handed down.

(10) Wait, what about non-economic benefits (i.e. visa petitions)?

Finally–and this is probably really just my personal bias–there is not a word anywhere here about immigration benefits. The focus is almost entirely upon economic and entitlement benefits for same-sex couples, but overlooks the fact that DOMA in its current form prevents unknown thousands of married partners from being able to remain together in the United States. While they would also clearly benefit from DOMA’s demise, I was disappointed that these vital stakeholders didn’t even get a passing mention.

—-

I am writing this just a little more than 12 hours after the decision came down, and after only a few hours of reflection. But what does it all mean? Will the SCOTUS take the assist and knock it out of the park, or fumble the hat trick?14 Will the aptly-named BLAG step up to conduct the hate train now that the Obama administration has disavowed DOMA? How angry will Scalia’s dissent be?

Find out in Anthony Kennedy Beyond ThunderDOMA! (Summer 2013!)

  1. To be fair, they had to stick Puerto Rico in somewhere. More importantly, the circuit court judges needed somewhere other than Boston to be in December. []
  2. There’s a lot of procedural history–and it’s fascinating, really–but it’s a lot more than we need here. []
  3. and you can’t get much shorter than the actual text of the law itself []
  4. It also legislatively overruled the Full Faith and Credit clause of the U.S. Constitution by preventing states from recognizing one another’s valid same-sex marriages, but that is a completely different topic not addressed in today’s decision. []
  5. To name only a few of the hundreds of possible implications []
  6. as opposed to civil unions or any other legal benefits for same-sex couples []
  7. This case famously included Judge Tauro’s question to a Justice Department attorney defending the government’s position that a military veteran could not be buried with his male spouse in a military cemetery if the federal government had an interest in “perpetuating heterosexuality in the graveyard.” []
  8. I really don’t think it is, and anyone who says otherwise should note that two of the three panel members were Republican appointees []
  9. But wouldn’t you rather just adopt ours? We went to all this trouble to write it out for you, and we really do quite like it. []
  10. While this will inevitably disappoint those who have been fighting so hard for marriage equality, the alternative would have been to somehow carve out New England and Puerto Rico as the only places in the United States where full marriage equality is recognized. For as much as I just enjoyed typing that last bit, this would cause all manner of chaos throughout any number of agencies and likely have unintended ripple effects throughout the nation before the Supreme Court had a chance to properly settle the matter. []
  11. Incidentally, the First indicates that it is leaning toward the “maybe not” side here. []
  12. Eh, just read the opinion for this. This is one of the best summaries of the inevitable countermajoritarian function of the federal courts I’ve seen in awhile. []
  13. Seriously, I know this sounds like a straw man–but this was an actual argument advanced during the course of this appeal. []
  14. Oh, sports! When will I ever understand you? []

Matt Cameron

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