Thursday, August 12, 2010

Defending The Indefensible: The Defense Of Marriage Act

Guest Blogger

Alan B. Morrison

Much has been written about two recent decisions, one striking down the section of the Defense of Marriage Act (DOMA) that denies federal benefits to same sex couples, who are legally married under the laws of their state, that are available to opposite sex married couples (Gill v. OPM), and the other invalidating California Prop 8’s elimination of the right of same sex couples to marry, which the California Supreme Court had upheld just months before (Perry v. Schwarzenegger). In both cases the federal court found that the distinction between same sex couples and opposite sex couples in the context of marriage to be wholly irrational. Although in some respects the cases raise similar legal issues, the actual operation of DOMA not only does not advance any legitimate interest in its discrimination against same sex married couples, but it actually undermines two important federal policies.

Many people who are unfamiliar with the intricacies of the thousands of federal laws that DOMA governs, including many who supported its enactment, believe that this inequality was a way to save the Government money, by not offering the same benefits to married same-sex couples that are extended to married opposite sex couples. But they were wrong. A 2004 report by the non-partisan Congressional Budget Office, found that, because of the many different ways that various federal laws treat married couples, in many cases a couple is better off not being married, even if they were just as legally wed as any other couple in their state. The most surprising finding of this study, which District Judge Joseph L. Tauro mentioned only in passing, is that, after taking into account the benefits and detriments to same sex couples, the result is that DOMA costs the United States Treasury nearly $1 billion a year – a very heavy price in any economic time for blatant discrimination.

But there is more, and it all operates to undermine other important objectives in federal laws. Over the years, Congress has established conflict of interest rules that forbid federal employees from participating in certain matters where they may have financial conflicts of interest. Thus, a person nominated to be Secretary of Energy could not own stock in ExxonMobil, and a high official in the antitrust division could not participate in a case involving a corporate merger if she were a shareholder in an objecting competitor. But telling the high official to divest or not participate is meaningless if the prohibition did not also apply to assets of the spouse, which it does. In addition, the laws that require disclosure, but not divestiture, of potential conflicts of interest, cover the spouse as well as the employee.

And that’s where DOMA comes in and makes the system quite irrational. If, as DOMA mandates, a couple is not married unless they are of the opposite sex, then none of these conflict of interest laws applies to same sex couples, thereby undercutting a significant protection for the Government and the taxpayers. Similarly, federal judges are disqualified in cases in which their spouses are parties or have a financial stake in the outcome, but DOMA bizarrely says “never mind” if the spouse is of the same sex. Yet in all other ways – including joint bank accounts - the couple is every bit as married as opposite sex couples. And with the increasing numbers of same sex married couples now in Government, the problem will only increase.

Of course, many officials whose spouse is of the same sex would insist on making disclosures about their spouse, or refuse to participate in a matter where the spouse had a financial interest that would be disqualifying if the official owned it himself. But that only means that the truly ethical person would never do what is prohibited, even if the law did not specifically say so, leaving the laws inapplicable to the very persons who most need to be subject to them.

The reason for this irrationality is obvious: any law made applicable on an across the board basis to all federal programs is almost certain to have unforeseen consequences. And when the law is an effort to strike out at less favored citizens, that likelihood is even greater. The refusal of the Defense of Marriage Act to treat legally married same sex couples identically to couples with opposite sex partners is not only unjustly discriminatory, but it produces such irrational consequences that the only way to describe it is “indefensible.” There is no place for such a law in this country, and the appellate courts should uphold Judge Tauro’s decision striking down DOMA’s discrimination as a violation of Equal Protection.

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service at George Washington University Law School. You can reach him by e-mail at abmorrison at

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