Friday, July 09, 2010

Double Chomp Out of DOMA

The Defense of Marriage Act got a long-overdue double dope slap yesterday in Boston. U.S. District Court Judge Joseph L. Tauro declared parts of DOMA violated the U.S. Constitution.

He found in Gill v. Office of Personnel Management that it violated due process and thus the Fifth Amendment. In the linked Commonwealth of Massachusetts vs. Department of Health and Human Services, he found that it arbitrarily federalized a state power, thus violating the Tenth Amendment.

You can find the basics, the LITE coverage, in today's Globe. A beefier piece with some analysis and appeals projections appears in the NYTimes. Personally, I look forward to NYU Law School Professor Arthur S. Leonard's take it on when he gets a chance to write it up on his site.

What's Next


To get down to it, we speculate on appeals. Clearly the anti-LGBT forces will not slink to their lairs in awe of Tauro's legal reasoning. Even though the fairly timorous Obama administration mounted a weak defense of this openly discriminatory act, it did something. Now we can expect it to appeal each of these decisions.

Tauro wrote his dual decisions to clarify the underlying issues and make it harder for First Circuit Appeals judges to miss his points. He danced a bit on the federal powers issue, but in the main he called it accurately.

Amusingly enough, he slashed, burned and flushed the pathetic emotional arguments of many anti-gay sorts. They were not specific government defense claims, but Tauro cited the crazy ones, like marriage is only for procreation, and stomped on them with specifics.

We can nevertheless expect the feds to come at his judgment with assertions that their duty to mind our dollars trumps the Constitution. That would be in such cases as where a legally married veteran wants his husband buried beside him in a federal cemetery. Massachusetts OK'ed that, but the government says it will strip millions from the commonwealth's money if it wasted federal dollars by providing this benefit when DOMA is in force.

There were no state-to-state comity issues in these two cases. The parts of DOMA that permit, even encourage, states to reject another state's legal marriages presently remain. However, the huge questions of whether the feds can use its big money stick to deprive spouses and children of homosexual couples for no good reason was the basis of Tauro's decisions yesterday.

There will be appeals. There will be high-volume emotionalism by winger media and groups. There will be a year or two at least of regrouping and re-arguing. The huge issue of whether the feds can mess in domestic relations at the state level will be in the middle.

What He Wrote


Tauro is a crisp, reasoned writer. He is not one of those cowardly judges who writes in the this-but-that tone. For example, among his many powerful statements is one with two peachy-keen citations (see Gill, page 37):
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this court finds that DOMA lacks a rational basis to support it.
He lists several places in both decisions in which the clear intent of DOMA is such discrimination.

To DOMA section 3, the judge ripped into the circuitous wording. The act admits states can determine who's married in each. Yet, it claims a Congressional, national interest in "...defend(ing) the institution of traditional heterosexual marriage." Tauro seems disgusted at the lack of scholarship in making sweeping claims for that alleged traditional marriage.

Moreover, he concludes (Gill p. 24):
But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.
On the next page, he adds:

But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex. And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.”
Repeatedly, he returns to equal protection. The product of the panic pot of the last decade, DOMA far exceeded federal authority with spurious claims of national need and interest. To wit, on page 28, Tauro writes that "the government's argument assumes that Congress has some interest in uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest."

I suspect this will be the core of appeals against yesterday's ruling. The feds have over 1,100 regulations and laws that provide benefits based on marital status. Tauro ruled that at least as far as Massachusetts is concerned, the feds suddenly have to be fair and recognize marriages in SSM states for benefits pruposes. An appeal would necessarily require the government to say it really has a need to continue to discriminate openly against legally marriws same-sex couples. I expect it to do so.

Underlying the Gill case too is the well-established law and case law that the U.S. Constitution "neither knows nor toleratsd classes among citizens" (page 19). That is particularly damning in that DOMA exists to create just such an artificial distinction. In that, Tauro provides detailed analysis and concludes (page 21) "...this court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."

Similarly with the Commonwealth case, the issues are much narrower, but the tenor now familiar. Our AG sued to assert that DOMA forced MA into a conflict with its laws by mandating that it discriminate against and set up classes among its citizens. Here, medical benefits as well as those such as funereal ones fell under such mandates.

AG Martha Coakley charged that the feds far exceeded their power in forcing the state to discriminate against its legally married citizens or lose millions in federal funds. We common folk might call such action extortion; she did not.

The gist of the MA argument is that the states get all the powers that the Constitution does not assign to the federal government, particularly as covered in the Tenth Amendment. Trying to find some, any, justification, the federal government argued that it was only trying to spend our money wisely, so it had such powers that affect benefits, including who is married, regardless of state law.

In his judgment on this case, Tauro included a long passage (Commonwealth, page 25) from a case that specifically defined this spending tack:
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.
The feds have played loose with this approach before. They are invested in such control and I suspect the Tenth Amendment issue will be the hardest fight. Times are tight and they may well claim fiscal prudence. Unfortunately, if they try to do it both by setting us citizen classes and by taking prohibited powers, they have a damned hard sell.

In Commonwealth (page 27), the judgment is unequivocal:
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
On the next page, he concludes:
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
Congressional sorts seem as a group to hate to hear they may not be the bosses of the world. Yet, that's one role of federal courts, including the SCOTUS.

The decision gets a bit historical on this issue. Tauro cites pre-founding-fathers colonial control over marital statue (page 30). He also calls directly to the current SCOTUS on the next page with, "That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty."

In fact, Tauro finds that DOMA actually strips Massachusetts of statehood, that is its ability "to fulfill its role in the Union" (pp. 33-34). The extortion-like call to do DOMA or lose millions by not discriminating was the core of Coakley's original filing.

Tauro wraps up this angle with (page 36):
This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.
He did his best to frame the appeals. He seems to have left out detailed discussions of other areas where the feds have nibbled away at states' rights in determining such benefits as immigration permission. We can be sure that any vigorous appeal will claim necessity in snatching those rights.

He managed to keep very complex law to under 40 pages in each decision. He telegraphed and then iterated the points he'd make. Tauro left little parsing room. The game is afoot.

Friday Update: The Washington Post runs a follow-up saying the Department of Justice is poring over Tauro's rulings and that other AGs may be considering their own DOMA challenges. Particularly as this goes to an appeal in the First Circuit, the principles become larger and more relevant to other states, such as the other four plus D.C. who have legalized SSM.

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