JURIST Guest Columnist Mary L. Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, says that the Defense of Marriage Act does not serve a legitimate government purpose and must be struck down by the courts…

By the time of John Ferris’ death in 2008, he and Herb Burtis had been in a committed relationship for 60 years. Their mutual love of music brought them together as college students in 1948 and in 2004, after a 55-year engagement, they were legally married in their home state of Massachusetts. By then, John was physically disabled by Parkinson’s disease, but Herb cared for him and reconfigured their home to keep John there as much as possible as he deteriorated.

Herb’s grief at losing his spouse and soul mate of 60 years was compounded by the indignity heaped on him by the Defense of Marriage Act (DOMA). Because of DOMA, Herb’s marriage to John was not a marriage for federal law purposes, even though the federal government recognizes all other state determinations of marital status for purposes of federal benefits and burdens. Thus, Herb’s application for Social Security survivor benefits was flatly denied. To Herb, DOMA meant that the federal government did not respect his marriage nor his loving 60-year commitment to John.

Now 82, Herb is a plaintiff in Gill v. Office of Personnel Management [PDF], along with two other widowers and seven same-sex couples all legally married in Massachusetts. The US Court of Appeals for the First Circuit, utilizing rational basis review, recently vindicated their equal protection claim in a unanimous ruling, holding that there is no justification for denying federal recognition only to the marriages of same-sex couples. A court employing rational basis review considers whether the challenged law has some rational relationship to a legitimate governmental interest. Judge Michael Boudin, writing for the First Circuit, posited that “Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” The First Circuit’s rational basis analysis was in accord with the three most relevant equal protection cases: USDA v. Moreno, Cleburne v. Cleburne Living Center, Inc. and Romer v. Evans, each of which analyzed the “the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.”

In Moreno, the US Supreme Court scrutinized the “fit” between a new food stamp exclusion for households with unrelated members and the asserted legislative justification when the measure was aimed at an unpopular group — “so-called hippies and hippie communes.” As a matter of first principles, equal protection requires legislated distinctions between households to be grounded in some independent considerations in the public interest and that “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” As the Court opined, even if it were true that unrelated person households were unstable or voluntarily poor, denying assistance was not a rational effort to deal with those concerns. Fraud and voluntary poverty were previously addressed in the law, so the new limitation did not further those asserted interests. Additionally, because the new household limitation could be easily evaded, it rationally could not be considered a legitimate anti-fraud measure.

Next, in Cleburne, the Supreme Court found a city’s legislative interests unconvincing where “prejudice and antipathy” and “negative attitudes” were the ultimate reasons why a city had denied a special use permit to a proposed housing facility for mentally disabled persons. Declaring that equal protection is “essentially a direction that all persons similarly situated should be treated alike,” and invoking Moreno’s caution about legislation directed at unpopular groups, the Court found that each of the substantive objections to the facility could have been raised about other comparable facilities that would be permitted to operate in the area.

Finally, Romer invalidated Colorado’s Amendment 2, a constitutional measure invalidating extant non-discrimination protections for gay people and forbidding all legislative, executive or judicial action at any level of state or local government designed to protect gay people based on their sexual orientation. Citing Moreno and Cleburne, Justice Anthony Kennedy’s majority opinion noted that the amendment “identifies persons by a single trait and then denies them protection across the board. Wary of classifications “drawn for the purpose of disadvantaging the group burdened by the law,” equal protection requires the classification bear a rational relationship to an independent and legitimate legislative end. The “immediate, continuing, and real injuries” inflicted by Amendment 2, the Court ruled, “outrun and belie” the legitimate justifications that were offered for it — conserving resources to fight discrimination against other groups, and protecting the sensibilities of those opposed to homosexuality. The Court concluded “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”

While the First Circuit applied rationality review in Gill, both the individual plaintiffs and the Department of Justice (DOJ) argued that DOMA fails under the heightened scrutiny that should be accorded to classifications based on sexual orientation. President Barack Obama and Attorney General Eric Holder concluded in February 2011 that DOMA is unconstitutional under this heightened standard, and accordingly, the DOJ ceased its defense of DOMA.

Gill could be on the Supreme Court’s docket this coming term, since two petitions for certiorari are pending. One comes from the Bipartisan Legal Advisory Group (BLAG), a standing body of the US House of Representatives, which has intervened in all DOMA litigation to defend the law’s constitutionality. DOJ, which remains a party to the case, filed the second petition on behalf of the federal defendants, urging the Supreme Court to find that sexual orientation classifications merit heightened scrutiny.

Gill is frequently mentioned in the same breath as Perry v. Brown, the case challenging California’s Proposition 8, which banned marriage for same-sex couples. Now that the US Court of Appeals for the Ninth Circuit has denied en banc review of its panel decision holding Proposition 8 [PDF] unconstitutional, that case is also expected to draw a petition for Supreme Court review.

While the cases are both about same-sex couples, they litigate dramatically different issues. In Gill, the plaintiffs were lawfully married in their state of residence, so there is no question about access to marriage itself. Instead, the Gill plaintiffs contest the federal government’s disparate (and unique) mistreatment of their existing marriages compared to all other marriages.

Conversely, Perry involves the question of access to marriage itself. The Ninth Circuit ruling in Perry found that the unique circumstances applying in California render Proposition 8 unconstitutional. The panel focused on how Proposition 8 took the right of marriage away from same-sex couples who enjoyed it due to a California Supreme Court ruling, and then relegated them to a registered domestic partnership system providing the state benefits and burdens of marriage but not the dignity of marriage itself. This equal protection ruling was narrower than that of the trial judge, who found that denying marriage to same-sex couples violated both federal due process and equal protection guarantees.

Of course, both equal access to marriage and equal treatment of existing marriages are both critically important. Same-sex couples, like others, seek to stand before family and friends and express their love and commitment in marriage. If the Supreme Court denies certiorari in Perry, or affirms the Ninth Circuit decision, then our nation’s largest state would become a marriage state. Once couples have made the legal commitment to marry, then, as Obama observed, the federal government should treat those married couples like all others.

There are currently several other challenges to DOMA pending across the country, including Pedersen v. Office of Personnel Management. Ruling in Pedersen on July 31, 2012, Judge Vanessa Bryant of the US District Court for the District of Connecticut became the latest jurist to declare DOMA unconstitutional. Additionally, BLAG filed for certiorari in Massachusetts v. US Department of Health and Human Services, a challenge to DOMA filed by Massachusetts Attorney General Martha Coakley. DOJ also petitioned for certiorari in that case, along with Golinski v. Office of Personnel Management, a challenge currently before the Ninth Circuit. Finally, the plaintiff in Windsor v. US also recently filed a petition for certiorari before judgment.

To date, DOMA has been declared unconstitutional by several district courts and one circuit court. Since it invalidates an act of Congress, one or more of these DOMA rulings appear destined for Supreme Court review in the near future.

Mary L. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD). She is leading GLAD’s challenge to the constitutionality of DOMA in Gill and Pedersen and was lead counsel in Goodridge v. Department of Public Health, the landmark Massachusetts Supreme Court decision holding that the right of civil marriage must be offered to same-sex couples.

Suggested citation: Mary L. Bonauto, DOMA Fails Constitutional Muster Under Any Standard of Review, JURIST – Hotline, Aug. 20, 2012, http://jurist.org/hotline/2012/08/mary-bonauto-doma-constitutionality.php .