DOMA ShMOMA: How MA Is Changing the Anti-Gay Marriage Game, One Case At a Time

Recently, most of the attention around the fight for marriage equality has been focused on California. The Prop 8 trial placed stunning degrees of ignorance on public display and made for several days of outstanding recaps. We couldn’t watch it, but you know, the full transcripts are available for everyone who is inclined to read. You like to read, right? (Good, ’cause this might get a little long.)

But the Prop 8 trial isn’t the only federal litigation happening right now regarding the definition of marriage – two other cases are currently making their way through the federal courts in Massachusetts: Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services (HHS).

Both of these cases challenge the constitutionality of Section 3 of the Defense of Marriage Act, which limits marriage to one man and one woman for all federal purposes.

Federal judge Joseph L. Tauro in Massachusetts just ruled that Section 3 of DOMA is unconstitutional.

Let Me Not to the Marriage of True Minds Admit Impediments

Historically, the definition of marriage has been left up to individual states.

My home state of Kansas waited until 2006 to decide that there should be a minimum age for marriage. Before that, if two 13-year-olds married, the federal government had to recognize the legality of the relationship.

Anti-miscegenation laws prohibiting interracial marriage were widespread in the South until the Supreme Court deemed them unconstitutional in 1967. Again, the federal government respected the dictates of the states: if a state declared two people married, they were married for federal purposes (and, conversely, if a state refused to marry two people, the federal government wouldn’t recognize the relationship).

This changed in 1996 when Congress passed DOMA. In relevant part, DOMA limits the definition of “marriage” and “spouse” to opposite-sex couples for all federal purposes, regardless of individual states’ laws.

But When the Tax Man Comes to the Door, Lord the House Looks Like a Rummage Sale

This is problematic. Not just because it means that the federal government refuses to legitimize your current/hypothetical-future marriage, but because when your relationship has a different status under one set of laws than another, things get complicated.

Consider everyone’s favorite subject: taxes. Pretend for a moment that you are married in California and that you and your spouse have also registered as domestic partners. Obviously you want to be good citizens and pay your taxes. And likely you’d prefer to avoid an audit and therefore you would like to file them correctly. But how?

California laws require that those registered as domestic partners combine their incomes; they can file jointly or separately, but if filing separately each person must report half of the couple’s shared income. But, for federal purposes, you can only do this when you are married to a person — and under DOMA, same-sex couples can’t be treated as married couples for federal matters. So what do you do?

Well, one couple in California asked the IRS. During the reign of Bush I, the IRS informed the couple that they had no legal grounds for being recognized as a couple. With Obama’s pledged commitment to equal rights, though, they opted to try again. The second time, the IRS informed the couple that not only could they divide their shared income, but they were actually required to do so for federal tax purposes.

So that’s easy! Confused about how to file your taxes because the state and federal governments are asking for different things? No big deal, just submit a request to the IRS for a Private Letter Ruling. Everyone has a lawyer sitting around just waiting to do this for free, right? Right.

Fortunately, according to Judge Tauro, the problem is more than DOMA making things complicated and inconvenient – Section 3 of DOMA is actually unconstitutional.

The Constitutional Problem: Equal Protection

Remember equal protection from the Prop 8 trials? Perhaps unsurprisingly, the concept makes an appearance here as well. Basically, the constitutional guarantee of equal protection doesn’t mean that the government has to treat everyone the same. Rather, when the government treats groups of people differently, it has to have a good reason why.

What counts as a “good enough” reason? It depends on how different groups are classified. When a classification is based on race, for example, a law must be narrowly tailored to meet a compelling governmental interest. When it’s based on gender, a law must be substantially related to an important governmental interest. In the vast majority of cases, though, the law need only be rationally related to a legitimate governmental interest.

With a cursory reading, it would be easy to miss the differences between the standards, but the differences here are impossible to overstate. Almost everything is permissible under the lowest level of scrutiny, while very few laws can withstand the highest level of scrutiny. Much of the time, the outcome of equal protection litigation turns entirely upon the level of scrutiny selected.

In Gill, the people challenging Section 3 of DOMA were all federal employees or the same-sex spouses of federal employees. Based on the limited federal definition of marriage, these individuals had been denied federal marriage-based benefits that were available to heterosexual married people (like health insurance and Social Security benefits). They argued that this denial violated the constitutional guarantee of equal protection.

Judge Tauro agreed.

Not only did he agree, he agreed without even considering the need for heightened scrutiny. Remember how I previously mentioned that almost every law can pass rational basis review? Not so, apparently.

According to Judge Tauro, “[t]here exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate governmental objective.” After considering the federal government’s purported interests — encouraging responsible procreation and defending heterosexual marriage — he concluded that the only purpose was to punish same-sex couples. And because “[a]n irrational prejudice plainly never constitutes a legitimate governmental interest, the law must fall.”

If a law is unconstitutional, it must fall. It doesn’t matter if it’s unconstitutional for one reason or twenty. But the more reasons you have for declaring a law unconstitutional, the more difficult it is to overturn on appeal, so Judge Tauro continued his evaluation of the law through the companion case.

The Other Constitutional Problem: The Tenth Amendment

In the U.S., Congress’s powers are both limited and strictly defined. Every federal law must be based on powers enumerated in the Constitution. Under the Tenth Amendment to the Constitution, the powers not delegated to the federal government are reserved for the states or the people. If Congress acts outside of its constitutionally granted authority, the law must fall.

In Massachusetts, the Commonwealth challenged Congress’ authority to enact DOMA. In essence, the state argued that Congress had no constitutional basis for enacting DOMA, and therefore the law interferes with the powers reserved for the states.

The federal government (in the form of Health and Human Services) argued that Congress enacted DOMA under the powers granted through the spending clause of the Constitution, which allows Congress to “provide for…the general welfare.” HHS argued that Congress has broad powers to set the terms on which it disburses federal money to the states, based on its spending power.

Confused as to the connection between limiting marriage to opposite sex couples and spending federal money? You’re not alone.

Certainly, by limiting the federal definition of marriage and excluding particular segments of the population, DOMA has effects on federal spending. For example, a state veterans’ cemetery in Massachusetts receives funding from the Department of Veterans Affairs for the burial of veterans and their spouses. To comply with DOMA and receive federal funding, the cemetery is expected to exclude same-sex spouses. Each time a same-sex spouse is denied burial rights, the federal government saves $300 in burial costs. Dollar by dollar, we’ll cut back the federal deficit by excluding same-sex spouses. Yep.

But as Judge Tauro noted, DOMA’s broad reach is not limited to provisions related to federal spending.

The ability to spend for the general welfare does not grant Congress free reign. Congress’s license to act pursuant to the spending power is subject to restrictions,  notably that Congress can’t place unconstitutional conditions on the receipt of federal funding.

And what is Congress doing here? Well, as explained in Gill, Congress is demanding that Massachusetts violate the constitutional guarantees of equal protection in order to receive federal funding. And because the spending clause does not provide the authority that HHS claimed, Tauro ruled that Congress exceeded its authority and Section 3 of DOMA must fall. Again.

So What Happens Next?

The Justice Department has not yet announced whether it will appeal these decisions. Because these cases are just at the trial court level, the government has an automatic right of appeal, but such a decision is likely to be politically unpopular. By appealing the case, the Obama administration would be choosing to argue that DOMA should stand, a stance that many long-term supporters are likely to find disappointing.

That said, in many ways it is in our collective best interest for the government to appeal. Without an appeal, the case only applies in Massachusetts. For better or for worse (ha!), the case will only have significant effects if an appellate court has the chance to consider the matter.

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Jessica has written 16 articles for us.


  1. Interesting analysis. Thanks for breaking it down. It will be fascinating to witness what Vaughn Walker does with his greatest tool to facilitate equality, his pen!

  2. “In the vast majority of cases, though, the law need only be rationally related to a legitimate governmental interest.”

    If you’re around, Jessica, could you expand on what “rationally” means in this context? Great breakdown, I don’t know nearly as much about DOMA as I should.

    • “Rationally” in this context merely means it’s conceivably appropriate (not irrational or arbitrary)

      This article was giving me flashbacks to the Bar and being able to recite con law rules in my sleep.

    • I am around. And in essence, it’s what kd15 said. Rational means non-arbitrary.

      To understand it, though, you really need to consider the whole phrase in context — rationally related to a legitimate government interest. Basically, to pass the test, you need a legitimate purpose and the ability to generate any connection between the division into groups and this purpose. Or to say it another way, a law only fails under the test is if the classification is based on something wholly irrelevant to reaching a legitimate objective.

      What counts as a legitimate objective? Basically anything that’s not prohibited by the Constitution. Even if it’s ridiculous. And even if it’s not the real reason the law was enacted. Essentially, the government just has to be able to come up with some hypothetical permissible reason for making a law, and it will withstand this test. Except, as is worth mentioning again, if the law was clearly just intended to harm a politically unpopular group.

      Did that help at all? (If not, I can keep trying).

  3. The only “rational” reason for DOMA is to support some religions specific beliefs and impose them on people who have different beliefs.

    And since Marriage under the law is a state function _ marriage license and the granting of rights under law for the married couple, churches should not have the right to interfer with state law. Not one iota, without ending retroactively their tax exempt status.

    And also unless you want to also legalize Islamic thought in our laws.

  4. Correction: In California, married same-sex couples like my wife and I (and RDPs–registered domestic partners) are required to file a single JOINT tax return, although I believe we also retain the option of filing separate tax returns (although this would likely result in higher CA taxes). However–and here’s where it gets interesting–when we file our federal tax returns the government, because of DOMA, requires us to LIE UNDER OATH by marking the box labeled SINGLE and filing separate tax returns. Of course, this at the same time PUNISHES us by making us pay higher taxes than every heterosexual married couple in the U.S.

  5. Jessica, thanks for the great article. DOMA is a horrific law that needs to be booted out of our lives ASAP. As gay and lesbian Americans we are denied at least 1000 Federal rights when we get married. Very basic rights like joint tax filing, immigration, adoption etc.

    Judge Tauro, a Nixon appointee no less, did the right thing here. My question to you Jessica is, since he has ruled this unconstitutional does the Justice Dept really have to appeal this? And if they don’t what happens next?

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