May 25, 2012
By Jacob Combs
In an order released yesterday, Judge Claudia Wilken of the Northern District of California ruled that Section 3 of the Defense of Marriage Act is unconstitutional in a class-action tax lawsuit, Dragovich v. U.S. Department of Treasury, brought by a group of three California government employees and their same-sex partners. Represented by the Legal Aid Society-Employment Law Center (LAS-ELC), the three couples argued in court that their exclusion from CalPERS, California’s long-term care plan for government employees, violates their equal protection rights under the U.S. Constitution.
In her opinion, Judge Wilken, a Clinton appointee with chambers in Oakland, wrote that DOMA and parts of the Internal Revenue Code that prohibit same-sex couples in marriages or domestic partnerships from enrolling in CalPERS “violates the equal protection rights” of those couples. She ordered CalPERS not to cite DOMA or those portions of the tax code to deny enrollment to same-sex couples, and prohibited the federal government from disqualifying CalPERS’s plans from preferential tax treatment. In the opinion, Judge Wilken wrote that her decision will be stayed if it is appealed to the Ninth Circuit.
Wilkens is the third federal judge to strike down DOMA: the others were Judge Joseph Tauro of Massachusetts, whose 2010 decision is on appeal in the First Circuit, and Judge Jeffrey White of California, who ruled earlier this year and whose decision is planned for an appeal at the Ninth Circuit in September. As in previous cases, the federal agencies listed in the suit as defendants chose not to defend the law, and the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives was allowed to intervene in their place.
In yesterday’s ruling, Judge Wilken noted that BLAG’s arguments were based almost entirely on two cases, Baker v. Nelson and Adams v. Howerton. In Baker, which was decided in 1972, the Supreme Court issued a summary dismissal to an appeal of a Minnesota Supreme Court upholding the state’s marriage equality ban, stating that the case was “dismissed for want of a substantial federal question.” BLAG argued that, because summary dismissals constitute decisions on the merits of lower court rulings, any case against DOMA was precluded by the Baker dismissal. Wilken noted, however, that the Ninth Circuit had addressed Baker in its February ruling on the Prop 8 case, and that Baker should not apply to the case she was deciding because the plaintiffs in Dragovich already have legal recognition for their marriages under California law.
Adams, on the other hand, which was decided in 1982, concerned a same-sex couple comprised of a United States citizen and an Australian national who received a marriage license from a Colorado county clerk. The couple sued the Immigration and Naturalization Service after a request by the U.S. citizen seeking permission for his partner to remain in the country as an “immediate relative” was denied. The Ninth Circuit’s decision was based in part upon a 1965 amendment to the Immigration and Nationality Act (INA) that excluded gays and lesbians as “inadmissible aliens.” Wilken wrote that Adams is not controlling precedent on Dragovich because of judicial and legislative developments since the decision, predominantly Lawrence v. Texas, which struck down sodomy laws criminalizing gay sex, and an 1990 act by Congress that removed the INA provision cited in Adams.
Wilken’s determination that Baker and Adams did not apply to the case before her might seem like common sense, but they are in fact extremely important. BLAG frequently cites Baker in the various DOMA cases being argued across the country, and Judge N. Randy Smith of the Ninth Circuit used Baker in his dissent from the appellate ruling striking down Proposition 8. The truth is that Baker is not only outdated (it’s a forty-year old decision), it simply bears no resemblance to the judicial and legislative environment that we live in. Even though the Supreme Court has not expressly reversed the Baker dismissal, it is clear that the case should not be used in deciding modern marriage equality litigation, and it’s a big deal when district judge after district judge affirms that.
Significantly, Judge Wilken did not go as far as Judge White did in his decision striking down DOMA on heightened scrutiny grounds. Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny. Under heightened scrutiny, a law must be shown to be “substantially related to an important government objective,” while under the more deferential rational basis test, a law only need be shown to be “rationally related” to a governmental interests to be upheld.
The current precedent in the Ninth Circuit regarding the scrutiny question for gays and lesbians is based on the 1990 case High Tech Gays, in which the appellate court ruled that constitutional questions based on sexual orientation should be considered under rational review. That decision, however, was based on Bowers v. Hardwick, a Supreme Court case that upheld sodomy laws and was explicitly overturned in Lawrence v. Texas. In his ruling, Judge White held that High Tech Gays should no longer be considered precedent and that heightened scrutiny should instead by used for sexual orientation-based constitutional challenges. Judge Wilken, on the other hand, noted that the Ninth Circuit has continued to apply High Tech Gays even after Lawrence, and considered DOMA under rational basis review, which she determined it did not pass. Wilken looked at all the reasons presented by BLAG as legitimate governmental interests for the legislation, and concluded that it was instead based on “anti-gay animus.”
As we’ve written before on P8TT, DOMA is without a doubt standing on its last legs. Now that the law has been struck down by three federal judges and will be considered by at least two appeals courts in this year alone, it certainly seems like only a matter of time before it is history. In the meantime, Judge Wilken’s ruling is another powerful determination of the inherent unfairness of laws that discriminate against gays and lesbians.