Thursday, February 26, 2009

Beginning of the end for DOMA?

In the last month or so, the Ninth Circuit has twice questioned the Constitutionality of the Defense of Marriage Act, or DOMA. DOMA has two provisions: first, it states that states are not required to recognize same-sex marriages from other states. Second, DOMA prohibits the federal government from recognizing same-sex marriage. It specifically provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7. The opinions deal with the second provision, and were written by two judges at opposite ends of the political spectrum: Chief Judge Kozinski, a respected conservative, and Judge Reinhardt, known as the most liberal judge on the Ninth Circuit.

Both of these cases arose out of the judges' roles as arbitrators for the Ninth Circuit's Employment Dispute Resolution program. Employees of the U.S. Courts who married a person of the same sex in California were denied health benefits for their spouse by the federal courts. The employees contended that the denial of coverage violated the court's Equal Employment Opportunity rules, which prohibit discrimination on the basis of sex or sexual orientation, as well as violating the Equal Protection provisions of the U.S. Consitution.

Kozinski's opinion avoided the Constitutional question by ruling that the Federal Employees Health Benefits Act (5 U.S.C. § 8903) did not prohibit the government from giving extra coverage beyond what was mandate in the act. However, he noted that the Consitutionality of DOMA was doubtful at best. Kozinski noted that excluding same-sex spouses from the definition of marriages for federal purposes seemed to be based solely on expressing moral disapproval rather than on a legitimate governmental interest, and may be an impermissible attempt by the state to punish private sexual behavior.

Judge Reinhardt's opinion disagreed with Kozinski on his reading of the Federal Employees Health Benefits Act. He held that because the statute provides that "The Office of Personnel Management may contract for or approve the following health benefits plans," it clearly excludes the authority to contract for plans outside of those offered in the statute. He therefore looked at the Constitutionality of DOMA and found it wanting.

Reinhardt looked at the three governmental interests put forward by the legislative history of the Act: defending the institution of traditional, heterosexual marriage; defending traditional notions or morality; and preserving scarce governmental resources. He notes that the first objective is irrelevant because the couple is already married under state law. The second justification does not work because the means by which DOMA encourages traditional morality is by punishing same-sex couples that exercise their rights under state law, and because traditional notions of morality, without more, is not enough to sustain a law as having a legitimate governmental interest. The third proffered interest also fails, as the amount of money saved is so insignificant as to be pretextual. Reinhardt therefore rules DOMA is unconstitutional as applied to federal health benefits for Ninth Circuit employees.

Neither one of these rulings is precedential, but it is interesting to note that federal judges are starting to question DOMA. The more states provide same-sex couples with rights under the law, the more the federal government's refusal to recognize those rights will appear backward and unjust to the general public. Whether by judicial ruling or by statutory repeal, DOMA's definition of marriage is on its last legs.

1 comment:

Alan said...


I just discovered your blog yesterday and have been reading through your posts as time permits.

It's great to find another gay lawyer with an LDS background who's capable of getting his hands dirty in the legal arguments supporting marriage equality, etc. Though tempted to do the same I haven't taken the time, being preoccupied with work, two young kids, etc.

Clicking on my name will take you to my Profile and my blog. No legal briefs there but you can at least see who co-counsel is. I would enjoy talking shop with you sometime if you're so inclined. There aren't many lawyers with backgrounds quite like yours or mine.