Balkinization: The beginning of the end of DOMA?

The beginning of the end of DOMA?

Andrew Koppelman

Today, the legal organization GLAD (Gay and Lesbian Advocates and Defenders) filed a lawsuit challenging the federal Defense of Marriage Act (DOMA), which, in pertinent part, denies same-sex married couples every single Federal benefit related to marriage. The suit, brought on behalf of eight married couples and three widowers, is the first concerted, multi-plaintiff to Section 3 of the Act, which denies spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and the issuance of passports. It is also the first suit in which plaintiffs who were married in their state of residence applied for federal benefits and were denied them.

The plaintiffs’ claim is a powerful one, and it’s hard to imagine how one could write an intellectually honest opinion rejecting it.

The complaint in the suit claims that the statute “is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate state interest.” It’s clear from the language that the attorneys are relying principally on two Supreme Court precedents, Department of Agriculture v. Moreno (1973) and Romer v. Evans (1996). Those cases, together, show that DOMA can’t withstand constitutional scrutiny. (Two Federal Court of Appeals judges have recently arrived at a similar analysis.)

Moreno invalidated a 1971 amendment to the Food Stamp Act that excluded from participation in the food stamp program any member of a household whose members are not all related to each other. Congress, the legislative history showed, was attempting to prevent “hippie communes” from receiving any stamps. The Court held that this purpose was fatal to the statute: “[I]f the constitutional concept of “equal protection of the laws” means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Like DOMA, the law in Moreno sought to keep federal benefits out of the hands of a group Congress didn’t like, and the Court held that those benefits had to be provided.

The Court expressly relied on Moreno in Romer, which involved an amendment to the Colorado constitution (referred to on the ballot as “Amendment 2”), which provided that neither the state nor any of its subdivisions could prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The amendment, Justice Kennedy’s opinion for the Court observed, “has the peculiar property of imposing a broad and undifferentiated disability on a single named group.” This went beyond any of the justifications proffered by the state. The Court thus felt compelled to “conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.” The broad disability imposed on a targeted group “raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”

DOMA cuts off federal benefits to a targeted, politically unpopular group, just like the law in Moreno, and it does so in a remarkably broad and undifferentiated way, just like the law in Romer. None of the government’s rationales for the law that were stated in the House Committee Report, cited in the brief, seem likely to be particularly persuasive, and some of them – “defending traditional notions of morality,” “advancing the government’s interest in conserving scarce resources” – were presented and rejected in Moreno and Romer.

The case also shows the implicit normative premises of rational basis analysis. Moreno and Romer are both cases where laws were invalidated for lacking a rational basis, but any statute's terms suggest a purpose that the statute rationally serves. See Robert Nagel’s famous student note, "Legislative Purpose, Rationality, and Equal Protection," 82 Yale L. J. 123 (1972). The real issue is whether some goals are impermissible, a question that can't be answered on the basis of "rationality."

Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country’s attitudes toward gay people has evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. In 1996, otherwise reasonable people thought it a pointless waste of taxpayer dollars to look after the basic needs of gay couples and their families. That callousness no longer looks so rational, and increasing numbers are ready to recognize gay relationships. The burden of proof now lies on those who want to defend this discrimination, and it is very hard to articulate a basis for this discrimination that makes sense. That’s the ultimate reason why DOMA is doomed.

Posted 3:26 PM by Andrew Koppelman [link]