Defending the Indefensible: DOMA, BLAG and the Future of Same-Sex Marriage in America

Photo Credit: Molly Cunningham

Photo Credit: Molly Cunningham

By: Spencer McAvoy

With the groundbreaking popular-vote successes of same-sex marriage in Washington, Maine, and Maryland this November, it is clear that the tide is at least beginning to turn in the struggle of gay-marriage rights. Even in the states that now recognize same-sex marriages, there remains one large obstacle to real legal equality: the Federal Defense of Marriage Act (DOMA).

There are currently no fewer than eight separate petitions regarding DOMA in front of the Supreme Court. Of these, the most likely to be granted writ are Windsor v. United StatesBipartisan Legal Advisory Group v. Gill,and Personnel Management v. Golinski.All three of these challenges are to Section Three of DOMA. Windsor concerns a woman, Edith Windsor, who married her late spouse in Canada in 2007 and was denied the spousal deduction for federal estate taxes when her wife passed away, and Golinski involves a same-sex couple who were denied health benefits, while Gill has more than fifteen plaintiffs with a variety of complaints. The equal protection clause of the Fifth Amendment and the “rational basis” and “heightened scrutiny” tests are the weapons of choice in all three cases.

For those who are not familiar with DOMA, it is a piece of legislation, and, to a certain extent, a constitutional amendment in disguise. Section Two of DOMA essentially suspends the Full Faith and Credit Clause of the Constitution with regards to same-sex marriages. This means that states are under no obligation to recognize same-sex unions from any other state, as they are required to do with opposite-sex marriages and every other legally binding contract between adults. Section Three defines marriage as between a man and a woman, and a spouse as a person of the opposite sex who is a husband or wife, with respect to federal legislation.

While the most obvious difficulties created by DOMA relate to taxes, the burden it places on same-sex couples by no means stops there. Same-sex couples may not file for joint bankruptcy; same-sex spouses of military personnel do not receive dental, family separation, or survivor benefits, and they do not have the same visitation rights as opposite-sex couples; same-sex spouses may not petition for citizenship for their spouse, nor can a non-citizen in a same-sex marriage use their married status to prevent him or herself from being deported. Though clearly not exhaustive, this list conveys the extent to which DOMA can be dehumanizing for the couples affected by it. The fiscal concerns are pressing to be sure, and it is, in fact, a tax issue behind Windsor v. United Statesbut what is really at stake is the power of the federal government to deny the legitimacy of a contract of commitment between consenting adults.

On November 20th, the Supreme Court is set to review eight different petitions involving challenges to DOMA. Besides the controversial element of same-sex marriage, the Act represents a landmark in legal history as the first time the Department of Justice has, at the request of President Obama, declined to defend a federal statute. In 2011, the Department of Justice announced that, at Obama's request, they would no longer defend DOMA in court, but would continue to enforce it until it is overturned. The Bipartisan Legal Advisory Group, a House of Representatives panel formed in the 1980's to be the legal representation of Congress, has since taken up the defense of DOMA. Their lawyer is Paul Clement, who was Solicitor General under George W. Bush, and argued against the Affordable Care Act in the unsuccessful challenge this past spring.

The GOP leadership, through the Bipartisan Legal Advisory Group, has expressed a desire that the Court choose Bipartisan Legal Advisory Group of the House v. Gillto review, while the Administration asked the Court to instead choose either Windsor v. United States, or Office of Personnel Management v. Golinski.Solicitor General Donald B. Verrilli called Windsor,“the most appropriate vehicle” for considering the constitutionality of DOMA. In an article on SCOTUSblog, Lyle Denniston also called Windsor “the most sweeping federal appeals court decision ever issued on gay rights”[i] due to its ruling that DOMA is subject to the standard of review established “in City of Cleburn v. Cleburn Living Center (1985) [internal citation omitted] and other cases.” This standard, termed “heightened scrutiny,” is the step above the “rational basis” test, though the Second Circuit Court did express the belief that DOMA would fail that test as well. Additionally, the Court provided in-depth analysis of each of the claims made by BLAG (Bipartisan Legal Advisory Group), which need not be reiterated here, but will certainly be important should the Court select Windsor for review.

Though it seems intuitive that it is a less serious matter to fail a more rigorous test, what is on the line is the level of scrutiny that will be required of legislation pertaining to the rights of homosexuals in the future. Windsor v. United Statesestablishes that homosexuals are “discernible group,” i.e. homosexuality is not a matter of preference, and that, due to their political weakness relative to the majority and the history of discrimination towards homosexuals, “heightened scrutiny” is certainly required.

Another factor, which will help to determine which case is ultimately chosen, is the fact that Justice Elena Kagan would most likely recuse herself if Gill comes before the Court. This is not a deciding factor, but the Court generally prefers to hear cases that all the Justices can participate in, particularly if there is a chance of a tie. And this is a very real chance with Gill, and helps to explain why BLAG wants that particular case to be chosen. If Kagan recuses herself and the Court ends up with a 4-4 tie, the decision of the lower court will automatically be accepted. But cases resolved in this manner do not set precedent, and so section 3 of DOMA would be invalid only in the states within the first circuit—Maine, Massachusetts, New Hampshire, and Rhode Island.

While clearly a desirable outcome for BLAG, this is an obvious reason for the court not to hear Gill, and Windsorseems, in many ways, the obvious choice. Affirmation of the Second Circuit's ruling in Windsor,however, would not result in a national legalization of same-sex marriages, nor would it necessarily mean that states would be required to recognize marriages performed in other states, as the challenge is to section 2 of the Act. Nevertheless, a victory against section 2 of DOMA would immediately improve the lives of same-sex couples throughout the United States.

The Court is also currently considering whether to grant writ in the case of Hollingsworth v. Perry, in which the Ninth Circuit ruled that California's Proposition 8 violates the Fourteenth Amendment. This case could well result in either the universal legalization of same-sex marriage or its prohibition, and the history and possible future of Hollingsworth will be the subject of my next blog post.