Federal Appeals Court Notes Disparate Treatment, Interference with State Law, In Striking DOMA

May 31, 2012

by Jeremy Leaming

Besides being the first federal appeals court to invalidate the discriminatory Defense of Marriage Act (DOMA), at least one blogger says it is noteworthy because two of the federal appeals court judges are Republican appointees. The unanimous court opinion upholding a lower district court decision, found DOMA advanced disparate treatment of same-sex couples and interfered with the right of states to regulate marriage.

In Gill v. Office of Personnel Management, a three-judge panel of the U.S. Court of Appeals for the First Circuit found that although DOMA does not invalidate same-sex marriages recognized in a growing number of states, “its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax retruns, which can lessen tax burdens, and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits. DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.”

The First Circuit panel continued that the federal law, enacted by President Bill Clinton, works “to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.” [Maryland recently joined seven other states and the District of Columbia in recognizing same-sex marriage.]

The public interest group, GLAD brought the case, representing seven Massachusetts same-sex couples and three surviving spouses to block the federal government from enforcing DOMA, which would block the couples from benefits available to straight married couples in the state. GLAD was founded in 1978 to end discrimination based on sexual orientation, HIV status, and gender identity and expression, argued that DOMA violates the equal protection rights of same-sex couples.

GLAD said the appeals court’s “decision reaffirms the lower court ruling that all married couples and surviving spouses deserve the same opportunities to care and provide for each other and their families.”

The Constitution’s equal protection clause prohibits the government from discriminating against classes of people. The U.S. Supreme Court has ruled that government discrimination of people based on race, alienage or national origin must survive strict scrutiny. Such classifications, called “suspect,” rarely do. An intermediate scrutiny is applied to gender-based classifications. Other classifications must only pass a rational basis review.

In this case the three-judge panel, pointing to Supreme Court precedent, said it could not create a new suspect classification for lesbians and gay men. “Nothing indicates that the Supreme Court is about to adopt this new classification when it conspicuously failed to do so in Romer – a case that could readily have been disposed by such a demarche. [In Romer v. Evans, the high court invalidated a Colorado constitutional provision banning localities from enacting ordinances to protect lesbians and gay men from discrimination.]

Nonetheless, the three-judge panel said, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.” Romer was among those decisions, the panel noted.

The burdens created by DOMA on the same-sex couples and surviving spouses in Gill are similar  to ones other federal courts, including the Supreme Court, have invalidated without turning to heightened scrutiny. Those burdens include “limiting tax and social security benefits to opposite-sex couples in their own and all other states,” the panel said. “For those married same-sex couples of which one partner is in federal service, the other cannot take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.”

Additionally, the appeals court panel touched upon federalism, saying that DOMA’s restrictions on legal same-sex marriages interferes with the rights of states like Massachusetts “to regulate the rules and incidents of marriage.”

The First Circuit’s opinion comes not long after President Obama announced his support for same-sex marriage. Other commentators, however, have noted that while marriage quality is important, it is hardly the cornerstone of full equality under the law. 

GLAD also noted that it expects today’s federal appeals court opinion to be appealed. Though the Obama administration will not defend DOMA in court, the U.S. House of Representatives will.