The federal Defense of Marriage Act (DOMA) is on a slow but steady litigation path that may well end in the Supreme Court as part of the legal battle over same-sex marriage.

Well, at least part of DOMA is on that path. Passed by Congress in 1996, DOMA has two sections that are important to the same-sex marriage debate, but only one provision, Section 3, is presently moving in the Supreme Court’s general direction.

Section 3 defines the term “marriage” for purposes of federal law as being between a man and a woman, and it defines the term “spouse” as a husband or wife of the opposite sex. The definitions mean that same-sex couples are excluded from a broad range of federal programs and benefits, ranging from the ability to file joint federal tax returns to spousal receipt of Social Security survivor benefits to family enrollment in federal employee health care programs.

The constitutionality of the definitions and their impact on same-sex couples has been challenged in a number of federal courts throughout the country, but the latest focus is on the U.S. Court of Appeals for the First Circuit, which will hear arguments on the issues in Boston on April 4. The outcome of that appeal will likely determine when the constitutionality of DOMA arrives at the Supreme Court.

The issues in the DOMA litigation are of interest to students in constitutional law, federal courts, family law, and seminars on sexual orientation and the law and on federalism.

First, let’s consider what is not headed imminently to the Supreme Court:  Section 2 of DOMA. Some background is in order. Section 2 essentially says that states do not have to give legal standing to same-sex marriages recognized as lawful in other states. Section 2 explains much of the reason for passage of DOMA in the first place. In 1993, the Hawaii Supreme Court recognized same-sex marriages under that state’s constitution. Under Article IV, Section 1 of the U.S. Constitution, states are supposed to give “full faith and credit” to the laws and court rulings of other states, subject to some regulation by Congress. Although Hawaii subsequently amended the state constitution so that the legislature could bar same-sex marriage, the 1993 court ruling initially raised the possibility that other states might have to honor same-sex marriages from Hawaii.

In Section 2 of DOMA, Congress carved out an exception to “full faith and credit,” excusing states from their obligation to honor the laws of other states “respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” But while some lawsuits have challenged Section 2, plaintiffs have had trouble getting past the threshold question of standing. To show sufficient injury, presumably a same-sex couple will have to marry lawfully in one state and then relocate and establish residency in a state that refuses to recognize their relationship and, as a result, denies them benefits and access to state programs. Only then might plaintiffs have sufficient injury to even be able to challenge Section 2.

But for Section 3, the injury to same-sex couples who are denied federal benefits is real and tangible, and at least two federal district judges have found Section 3 unconstitutional. In the decisions on appeal to the First Circuit, Judge Joseph Tauro of the U.S. District Court for the District of Massachusetts issued two separate rulings finding Section 3 unconstitutional for multiple reasons.

In one lawsuit (Gill v. Office of Personnel Management) filed both by same-sex couples and survivors of same-sex spouses, Judge Tauro ruled that the federal law deprived the plaintiffs of equal protection because it denied them access to benefits that were available to heterosexual married couples.  His ruling relied not on the Fourteenth Amendment, which only regulates state conduct, but instead on the implied equal protection component which the Supreme Court has found in the Fifth Amendment. He used the lowest level of judicial scrutiny under the Equal Protection Clause, finding that Congress had no rational basis for Section 3 and rejecting claims that defending traditional notions of morality or elevating the importance of heterosexual marriage should be enough to justify the law.

In a second ruling on the same day in July 2010 (Massachusetts v. U.S. Department of Health and Human Services), Judge Tauro indicated that Section 3 of DOMA could not be justified under Congress’s power to attach conditions to federal spending programs. He also found that DOMA interferes with state marriage laws to a sufficient degree that it violates the Tenth Amendment, a repository of federalism principles which reserves powers to the states and the people that are not specifically delegated to the federal government.

These rulings, combined into a single appeal in the First Circuit, would have been interesting enough without the developments of February 2011, when President Obama and Attorney General Eric Holder announced that they would no longer defend Section 3 of DOMA. Thus, in September 2011, the brief filed in the First Circuit in support of DOMA in January 2011 was replaced with a new Justice Department brief arguing that discrimination against same-sex couples should be analyzed under a higher level of judicial scrutiny and that Section 3 of DOMA should be found unconstitutional. The Justice Department argued both that Section 3 violates equal protection and also that DOMA imposes unconstitutional conditions on the receipt of federal funds by the states.

So if the Justice Department is not defending DOMA, who is? That question is yet another interesting twist in the First Circuit. A group called the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives was given permission to intervene to defend DOMA. But the group turned out not to be bipartisan at all. The brief identifies five members – three House Republican leaders and two House Democratic leaders – and then notes that the two House Democratic leaders declined to support the brief that was filed. In other words, DOMA is being defended solely by the Republican leadership of the House.

Meanwhile, the ruling of the District Court in Massachusetts gained an ally last month when Judge Jeffrey White of U.S. District Court for the Northern District of California ruled (in Golinski v. U.S. Office of Personnel Management) that Section 3 of DOMA violated equal protection standards, regardless whether the District Court applied a heightened level of scrutiny or applied the rational basis standard. Presumably BLAG will appeal this ruling to the U.S. Court of Appeals for the Ninth Circuit.

When will the DOMA Section 3 issue get to the Supreme Court? The answer to that question depends, of course, on how quickly the First Circuit issues an opinion. But it is quite possible that the First Circuit will tee up the issue for consideration of a petition for certiorari by the Supreme Court in the next Term that begins in October 2012. Indeed, it is possible that an appeal of DOMA issues from the First Circuit and an appeal of the California voter ban on same-sex marriages from the Ninth Circuit could find their way to the Supreme Court in the same Term. Stay tuned.

Posted in Featured, Same-Sex Marriage, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: The Defense of Marriage Act and the Constitution (sponsored by Bloomberg Law), SCOTUSblog (Mar. 23, 2012, 3:01 PM), http://www.scotusblog.com/2012/03/scotus-for-law-students-the-defense-of-marriage-act-and-the-constitution-sponsored-by-bloomberg-law/