On May 6th, Massachusetts District Court Judge Joseph L. Tauro heard oral argument on a motion for summary judgment by plaintiffs seeking to invalidate section 3 of the federal DOMA. Section 3 (codified at 1 U.S.C. § 7) excludes married, same-sex couples from over 1000 benefits and protections of federal law that are available to married, opposite-sex couples. Representing the plaintiffs, Mary Bonauto advanced three reasons why they are entitled to summary judgment:
"1) by singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; 2) DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and 3) by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity." (05/07/10 GLAD Blog)Department of Justice attorney W. Scott Simpson defended the law at the hearing, while acknowledging that the Obama administration opposes it as a policy.
Media articles address the equal-protection arguments by Bonauto and Simpson (see links to articles at the 05/06/10 GLAD press release), even though the "federal intrusion" question will return to the forefront later this month in a parallel case brought by the state of Massachusetts. Bay Windows may have the most detailed report on the equal-protection arguments.
Different constitutional tests determine whether a law violates the 14th Amendment's guarantee of equal protection. Under the rational basis test, a law can single out a minority for unequal treatment, if any reasonably conceivable facts provide a reason for the state to do so, and the state has some other reason than moral disapproval of the minority. However, a higher standard determines whether such a law can survive constitutional review under a "strict scrutiny" test. If, among other things, the minority has a history of discrimination, and has been politically powerless to remedy it, then the state must have a compelling reason for treating the minority unequally, and the unequal treatment must be narrowly tailored to its goal.
Judge Tauro focused on whether section 3 passes constitutional review under the rational basis test. (The Advocate) Simpson argued that it does:
"He said Congress had a legitimate rationale to pass the federal law 14 years ago, given that some states [such as Hawai'i] were beginning to consider legalizing same-sex marriage. DOMA, he said, maintains the status quo -- marriage reserved exclusively for heterosexuals -- and prevented the federal government from having to keep track of which states had legalized gay marriages and which had not." (Boston Globe)Is the federal government challenged over the fiscal and administrative costs of legal bookkeeping it would allegedly need, but for DOMA? "We’re not talking about mom-and-pop operations here," Bonauto replied, "We’re talking about the federal government." (NY Times) Of course, without DOMA, the federal government would not need to tally which states do and do not allow same-sex marriages. It would simply treat all married couples equally. Bonauto also relied on DOMA's legislative history to show that Congress adopted the law to express moral disapproval of homosexuality - an illegitimate reason for the law's unequal treatment of married, same-sex couples. (Christian Science Monitor)
Simpson claimed another reason for restricting benefits and protections to opposite-sex marriages: the restriction allows the federal government to recognize the "status quo" in the 45 states that ban same-sex marriages. Bonauto said that it "upended" the status quo because until DOMA the federal government had always deferred to exclusive state authority over marriage. Tauro demanded that Simpson "point to an incident" when the government assumed such authority. "It’s true," conceded, "that, up until DOMA, the federal government has "simply followed the states’ definition of marriage."(Bay Windows)
(Law professor Nan Hunter comments on DoJ's application of the rational basis test here.)
The Perry case has received disproportionate attention in mainstream and social media, a tendency that this site has been captive to. But Gill v. OPM will have an impact no less sweeping if plaintiffs prevail. The National Law Journal reports that it is "a carefully planned case" that "could be the gay marriage test with the greatest national impact."