DOMA is constitutionally doomed, but not for the reason you might think

June 11, 2012

When you hear the story of Edith Windsor, the constitutional consideration that comes to mind is the Equal Protection Clause of the 14th Amendment. Windsor, an IBM systems consultant, met Thea Spyer, a clinical psychologist, at a restaurant in New York in 1963. They fell in love and moved in together in New York City. In 1993, as soon as the city permitted it, they registered as domestic partners, and in 2007, as Spyer’s multiple sclerosis advanced, she and Windsor were married in Canada. Spyer died in 2009, leaving her entire estate to Windsor, who was recognized as her wife in New York. But because of the 1996 federal law known as the Defense of Marriage Act, Windsor was denied the unlimited marital tax deduction that she would have received had Spyer been a man. Instead, she was hit with a $363,000 tax bill on Spyer’s estate.

Represented by Paul, Weiss, Rifkind, Wharton & Garrison and the American Civil Liberties Union, Windsor sued the United States in federal court in Manhattan in 2010, claiming that the Defense of Marriage Act, or DOMA, violates her constitutional right to equal treatment under the law.

Windsor, who is now in her eighties, won her case Thursday, when U.S. District Judge Barbara Jones agreed that DOMA is unconstitutional. Jones’s ruling was the second in a week to conclude that the federal law cannot survive constitutional scrutiny. On May 31, a three-judge panel of the 1st Circuit Court of Appeals also found that DOMA breaches equal protection provisions.

But what’s particularly interesting about both DOMA rulings is how they reached that finding. Neither Jones nor the 1st Circuit panel – Chief Judge Sandra Lynch and judges Juan Torruela and Michael Boudin – said that the law is unconstitutional because homosexuals are an especially protected class of people, so laws involving their rights must be closely scrutinized. Instead, the opinions cited federalism concerns as a reason for subjecting DOMA’s intended objectives to close examination, which both rulings found the law could not withstand.

There are certain classifications, notably race and national origin, that the U.S. Supreme Court has held to be entitled to “strict scrutiny,” which means any law that draws distinctions based on those classifications must be narrowly tailored and deemed to involve a compelling governmental interest. Gender classifications, under Supreme Court precedent, don’t rise quite to that level but still receive “intermediate scrutiny.” According to the 1st Circuit’s elegantly written opinion in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, that means laws that draw distinctions based on gender “must be substantially related to achieving an important governmental objective.” Every other classification is evaluated under the so-called rational basis standard, which demands only that Congress had a plausible factual basis for passing the law at issue.

Edith Windsor and some of the plaintiffs in the Massachusetts DOMA challenge argued that the marriage law should be subjected to intensified scrutiny because homosexuals are what’s called a “suspect class,” meaning courts ought to suspect that laws treat them unequally. They both lost on that point. The Massachusetts and New York opinions held that laws with a disparate impact based on sexual orientation are not entitled to strict or even intermediate scrutiny under existing case law. The 1st Circuit opinion, written by Boudin, explained that the U.S. Supreme Court has conspicuously failed to add homosexuals to the classes that merit special consideration, and that if the appeals court were to do so, it would be an implied overruling of high court precedent.

But both DOMA opinions said the rational basis standard isn’t exactly right either. Jones and Boudin wrote that the U.S. Supreme Court has become increasingly likely to distinguish laws that seem to compel unequal treatment of politically unpopular groups from routine economic or tax legislation evaluated under that rational standard test. So at a minimum, Jones said, she had to consider the relationship between same-sex couples and Congress’s intent. Or, as Boudin wrote in the 1st Circuit opinion, context matters. The appellate panel specifically noted that if the Massachusetts case goes to the Supreme Court, as the panel seems to believe it will, the justices will also determine that DOMA’s equal protection implications demand an examination of Congress’s objectives in passing the law.

As both DOMA rulings explained, those objectives were hardly a secret. Congress enacted DOMA after a Hawaii state court ruling that appeared to open the door to same-sex marriage. It was a rushed legislative response to a perceived threat to the institution of marriage, so it defined marriage as a union of a man and a woman and denied federal benefits to same-sex partners.

Here’s where things got very interesting in both the 1st Circuit and Manhattan federal court decisions. Although it’s true that the federal government has an economic interest in who gets married, it’s not Congress’s job to define marriage. That’s the purview of individual states, as we know from the divide that had developed between states that permit same-sex marriage and those that have enacted bans. According to both Boudin and Jones, when the federal government meddles with states’ rights, the doctrine of federalism demands intense analysis of equal protection considerations. As Boudin explained in the 1st Circuit opinion: “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”

Both opinions then analyzed Congress’s explanations for DOMA and found that either the stated reasoning didn’t match the statute or congressional motives were at odds with Supreme Court precedent. That led both courts to conclude that the law cannot stand. “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’s will, this statute fails that test,” the 1st Circuit said. Writing a week later, Jones said, “It is problematic … that the means used in this instance intrude on the states’ business of regulating domestic relations. That incursion skirts important principles of federalism and therefore cannot be legitimate.”

When and if the Supreme Court takes up DOMA – and the Los Angeles Times suggested in an op-ed Friday that the 1st Circuit case is the high court’s best route to resolving the issue of same-sex marriage – the justices will have quite a conundrum on their hands. Federalism is a cherished principle for members of this court who might otherwise be expected to brush off equal protection arguments for homosexuals. The 1st Circuit and Judge Jones aren’t going to make this easy.

Paul Clement of Bancroft, who represented congressional DOMA proponents in both cases, didn’t return my call for comment.

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