More DOMA analysis

Dale Carpenter at The Volokh Conspiracy writes:

Massachusetts District Court Judge Joseph Tauro issued two decisions in companion cases Thursday striking down Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law. It's the first time any federal court has declared any part of DOMA unconstitutional. One decision, Gill v. Office of Personnel Management, did so on equal protection grounds (via the Fifth Amendment). The second decision, Massachusetts v. Dep't of Health & Human Services, did so on federalism grounds. In this post I'll concentrate on the equal protection decision. In a separate post I'll have some reactions to the federalism decision. (The decisions do not affect DOMA Section 2, which allows states to refuse to recognize SSMs from other states.)

....

The court doesn't hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.

....

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones. Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996. But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I'm guessing was particular glee, Judge Tauro cites Justice Scalia's dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia's dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it's not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence. Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia's dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question. Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it. Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding. Op. at 28–35.

A related justification, said the DOJ, was Congress' interest in moving incrementally on the issue. The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context. Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).

The relatively recent enactment of DOMA, the legislative history, and the specific purpose of excluding gay couples, may make an animus conclusion more likely in the case of Section 3 (or Prop 8, or a state DOMA) than in the case of a simple, long-standing state definition of marriage. Add to that the passage of DOMA against a tradition of almost total federal deference to the states in recognizing marriage, and you have the possibility of a holding limited to the DOMA context.

I say "possibility" because I think that reading of Gill is probably not the one either side in the debate will readily adopt, and not the one that will prevail. Gill is the potentially more radical of Thursday's decisions for SSM in the sense that its rationale could be used by other federal courts to strike down state marriage and state DOMA laws (and could provide one more paragraph in Judge Vaughn Walker's expected decision striking down Prop 8, coming soon to a blog near you). Thus, it also stands a better chance of being reversed by the First Circuit or, failing that, by the Supreme Court.