Saturday, June 2, 2012

The Defense of Marriage Act Smackdown

As you probably know by now, this week, the First Circuit Court of Appeals found the Defense of Marriage Act ("DOMA") unconstitutional. If you have the time and inclination to read the whole opinion (written by Judge Boudin, who is a smart fellow), I recommend it. Also, in case you're curious, all of DOMA is included at the end of the opinion. It's very short.

Now, LGBT rights are my pet issue, so I could probably write something longer than the opinion itself discussing this decision. But I'll restrain myself and pare it down to some of the most important points. 

1. The court struck down the part of DOMA that defines marriage as between one man and one woman, not the part that says one state doesn't have to recognize same-sex marriages licensed in other states.

There are two relevant parts of DOMA: Section 2, which says that states don't have to recognize same-sex marriages from other states, and Section 3, which says:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.

Nobody was challenging Section 2 in this case, so the court didn't decide whether that was constitutional or not. It found Section 3 unconstitutional. 

2.  The court used "rational basis" review here - the easiest way for a law to survive an Equal Protection challenge - but still looked at the law very carefully because it is bad for a "historically disadvantaged or unpopular group" and because states are supposed to define marriage, not the federal government. 

2a. If that's confusing, then here's a quick primer on Equal Protection law. If you already know that stuff (or don't feel like reading that), then feel free to skip to 2b.

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When someone challenges a law on Equal Protection grounds, what they're saying is, this law treats two groups of people differently, who are exactly the same except for X characteristic (e.g., race, gender, age). How tough it is for the law to survive that challenge depends on the characteristic in question. 

If it's "suspect" - that's race and religion - then the court will apply a "strict scrutiny" test, which means that the law has to be related to a "compelling state interest," and it has to be "narrowly tailored" to that goal. The bottom line is, if the law actually does discriminate on the basis of a suspect classification, it's dead in the water. Almost nothing has ever survived this test, and when it has, we've later found out that the government lied to the court to convince it (that's the WWII internment camps case, in case you're wondering. Unspeakably horrible.). 

Discrimination on the basis of sex/gender gets "intermediate scrutiny." That means it has to be related to an "important government interest" and must be "reasonably" tailored towards that goal. It's still very tough to show this, but it's not impossible because, well, male and female humans actually aren't exactly the same. So it's not beyond the bounds of the imagination to think of ways in which we could be treated differently. It's only usually BS. 

Any other kind of classification - like age, or income level, or whatever - gets what's called "rational basis" review. In theory, that means that if the government has a rational reason for making this law (even if they could've done it better), it'll survive. Most laws pass this test. 

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2b.  The Justice Department (as you may remember) decided not to defend DOMA because, it said, discrimination based on sexual orientation is like discrimination based on gender - when you discriminate based on it, you better have a better than average reason (in other words, it should get intermediate scrutiny). They felt that they couldn't make a good argument supporting DOMA that reached that bar. The court disagreed, mostly because it believed the Supreme Court has said otherwise. (I don't think so, but then, I once wrote a giant diatribe on a constitutional law exam about how sexual orientation should be treated as a suspect classification, like race. So, take my opinion with a grain of salt.) Instead, it applied "rational basis" review, meaning that the law would be upheld if there was a rational reason for it to exist. 

But, here's the really interesting part: the court said that not all "rational basis" cases are the same. Sometimes, it said, even where there's no classification calling for intermediate or strict scrutiny, there are still reasons to give it a closer look than, say, your average tax case. In this case, the court found two reasons to review DOMA with what Justice O'Connor called "rational basis with bite." 

First, the law discriminates against a "historically disadvantaged or unpopular" group. The Supreme Court has looked at other sexual orientation cases this way (in Romer v. Evans), and has also taken a closer look at laws discriminating against people with an extremely low income and people with mental or physical disabilities. Even if these aren't heightened scrutiny groups, you have to be extra careful about upholding a law that treats them poorly, even when you're only looking for a rational basis. And second, there are serious states' rights issues going on here. States, not the federal government, typically define marriage and its boundaries. When the federal government tries to meddle in that, the court said, you have to take a closer look to make sure there's actually a rational reason for it. (In case you're curious, some other areas of "traditional state regulation" are education, adoption, and criminal law.) 

So, with that stuff in mind, the court looked at the reasons for the law to see if they were "rational" enough. And they said...

3. The Court held that none of the justifications for DOMA were good enough, including traditional values and morality.

This, in my opinion, is the big deal. There were three basic reasons given for the federal marriage definition, and the court rejected them all. Briefly, they were:

(A) Saving Money. The government said that it had to limit what counts as marriage for purposes of federal benefits because it has to limit who gets tax breaks, etc. somehow. The court said that was usually a good reason, but it wasn't good enough where the people who lose out in that line-drawing exercise are historically disadvantaged. Save money all you want, but you can't do it at the expense of people who've been screwed over a lot already. 

(B) Supporting heterosexual marriage and a stable household for child-rearing. The court rejected this reason because:

DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage.

Well put.

(D) Because state marriage law was changing so fast, the federal government wanted a "time out" so it could keep its benefits the same until the dust settled. The court effectively said, that's BS, because the law isn't temporary.

But most importantly,

(C) MORALITY! The main reason for DOMA, as we all know, is a moral judgment. Ever since Lawrence v. Texas (that's the case that stuck down anti-sodomy laws, in case you were wondering), lawyers have been asking themselves, "Is morality alone enough to justify a law?" In this case, the court said no. Historically, it said, this might've been enough, but no longer. This, ladies and gentlemen, is a big deal.

So that's the (very) long and the short of it: morality isn't a good enough reason for the federal government to interfere in state matters and discriminate against a group that has hard time prevailing politically. In conclusion, I'd like to leave you with this delightful quote:

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.


  1. Same sex marriage seems to be a big issue. It questions not only the morality of the society but religious beliefs as well. Though it is already accepted in some states, most of other countries do not allow this to happen. Well, no one can really dictate whom to love regardless of the gender, and no one can ever tell if this is right or wrong since everyone has its own perspective when it comes to this issue.

  2. This is one of the interesting topics I've ever read!

  3. This is a great topic. Same sex marriage may be accepted in the society but it's never in the will of God.