June 18, 2012
By Scottie Thomaston
Thanks to Kathleen for sending this a couple weeks ago
In Golinski v. OPM, Karen Golinski, an employee of the Ninth Circuit Court of Appeals, is challenging the constitutionality of the Defense of Marriage Act after she was denied spousal health care benefits under the law. She won her case in the District Court and the Bipartisan Legal Advisory Group (BLAG), the group of Republican-led House members defending the law, appealed to the Ninth Circuit. The Department of Justice asked for an initial en banc hearing, with a full panel of Ninth Circuit judges, to speed up the process and bypass the smaller three-judge panel. Another reason to ask for an initial hearing with a full panel of judges is that they have the ability to overturn precedents in the circuit that may be unfavorable to one party in the case.
The three-judge panel has to abide by existing precedent. This would mean, in the Ninth Circuit, the judges will have to address a case called High Tech Gays. That case set a precedent in the Ninth Circuit that gays and lesbians are not entitled to “suspect class” status, and laws against them are only reviewed under the minimal standard of review, called rational basis review. Another precedent in the Ninth Circuit, Adams v. Howerton, is relevant to the case. In that case, the circuit court said that it is constitutional for Congress to limit the definition of marriage to one between a man and a woman, in the immigration context. Both cases may factor in to any final decision, along with Baker v. Nelson, in which the Supreme Court summarily dismissed an equal protection challenge where a same-sex couple attempted to marry in Minnesota but was denied.
The Ninth Circuit rejected the initial en banc hearing, but did keep an order in place to put the case on an expedited schedule. Oral arguments will be the week of September 10-14. Briefs have begun to be filed in the case and last week, BLAG filed its first merits brief in the Golinski case.
(Continue reading below the fold…)
At the outset, Paul Clement argues that the law should be reviewed under the most relaxed rational basis standard, and he writes that the issue is whether Congress could rationally conclude that DOMA furthers the government’s interest in:
- Maintaining uniformity across state lines in the allocation of federal benefits;
- Preserving the public fisc and previous legislative judgments allocating marital benefits on the understanding that they would apply only to opposite-sex married couples;
- Exercising caution in confronting the unknown effects of an unprecedented redefinition of our foundational social institution;
- Encouraging and supporting those committed relationships (i.e., committed opposite-sex relationships) that most frequently result in the begetting and raising of children;
- Encouraging and supporting the raising of children by their own biological mothers and fathers; and
- Encouraging and supporting family structures in which children will have both a male parent and a female parent.
After laying out those points, the argument moves on to Baker v. Nelson, a case we’ve written about many times here. The argument is that the issues in Baker are closely related to the issues in DOMA that the precedent in Baker precludes a challenge. The Supreme Court has a standard wherein the facts from both cases have to match “precisely” in order to apply the precedent to that case. So BLAG’s goal is to convey to the judge that the cases are exactly alike.
Here is how the BLAG brief describes Baker:
In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), the plaintiffs—two men who were denied a marriage license “on the sole ground that [they] were of thesame sex,” id. at 185—brought an equal protection challenge to Minnesota’s statute defining marriage as a “union between persons of the opposite sex,”
The brief talks about “Baker‘s obvious relevance” and asserts that the Ninth Circuit is “obligated to follow Baker. But as we’ve written before, it’s not so clear that the legal issues match up precisely:
Baker v. Nelson [is] a 1971 case in which a same-sex couple in Minnesota wanted to get married but were denied a license even though state law and the state constitution didn’t explicitly ban same-sex marriage. The jurisdictional statement to the Supreme Court discusses the equal protection violation, saying that deprivation of marriage equality is “sex-based”, and this was the argument made to the Minnesota Supreme Court as well. They rejected the argument, writing that, “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”
The US Supreme Court, in a one-sentence order, ruled that “The appeal is dismissed for want of a substantial federal question.” Because of the procedural posture of the case – it came to the Supreme Court under mandatory review because of an old rule – it is widely considered to be precedent.
The application of Baker makes even less sense in the Golinski case than it did in the Sevcik case, which at least involves a federal claim that a state law is unconstitutional under equal protection. The Defense of Marriage Act applies to people ho are already legally married in their states. None of the DOMA cases are about a 5th Amendment (or 14th Amendment) “fundamental right to marry” or a right to equal protection in marriage. They are married. All courts who have ruled in DOMA cases have agreed that Baker is not relevant. We don’t yet know what the courts will say in a marriage equality case – aside from Judge Walker’s ruling (on page 75) in the hearing for summary judgment in the Prop 8 case, in which he rejected Baker as binding and relevant precedent. The Prop 8 case is now situated in such a way where it won’t have to address Baker and the only other federal marriage equality case, Sevcik v. Sandoval, is still in its early stages. What we do know is that Baker does not seem significantly related to DOMA cases.
Reliance on Adams v. Howerton seems just as dubious. First, it’s specifically a case in the immigration context. Secondly, it is a 1982 case. This means that it was decided only a decade after Baker and four years before the Supreme Court addressed gay rights in Bowers v. Hardwick, a case about sodomy laws, in which the Court upheld the law. There have been many changes in equal protection and due process jurisprudence since then. Bowers, Romer, and Lawrence have been decided since then. Not to mention, in Christian Legal Society v. Martinez, the Court suggested that “[o]ur decisions have declined to distinguish between status and conduct in this context”, suggesting essentially that a majority of the Court now views gays and lesbians as a class of people, rather than seeing homosexuality as a behavioral characteristic.
High Tech Gays was also decided before these advancements.
Moving on to the argument that DOMA is rational because it provides uniformity in marriage laws, BLAG has an interesting suggestion: namely, they argue that opting to recognize same-sex marriage would have been a rational choice for Congress to make; BLAG suggests, though, that deciding not to recognize marriages is equally rational:
Congress could (a) adopt the approach of the overwhelming majority of the states and limit marriage to opposite-sex couples, (b) incorporate a patchwork of state rules into federal law, meaning that federal benefits for same-sex couples would depend on which state they lived in, or (c) flout the majority state approach and recognize same-sex marriage nationwide for federal purposes. Any of these choices would have been rational—including (a), the one that Congress opted for in DOMA.
Essentially, this seems like a “but it’s so hard” argument against recognizing already-existing same-sex marriage. I wonder if this type of “rational basis” would survive under a form of review where animus is considered as a factor. Sure, it could seem rational to say that one or the other choice is fine, if one of the choices did not involve implicit animus. The reasons to reject recognition of same-sex marriage are usually tied to simple dislike of gays and lesbians. This would likely be seen as a suspicious classification of gays.
The next argument BLAG makes is that DOMA “preserves the public fisc” – or that it saves the government money. BLAG cites cases that suggest saving money is a rational basis for a law and that questioning legislative judgments in that regard is not permitted. The most interesting part of this argument is its limits: BLAG says that their logic would not go so far as to allow governments to strip benefits from its citizens because that poses constitutional problems, and then it cites Perry v. Brown for that proposition:
To be sure, when government withdraws benefits that it previously offered to a class of people, or denies benefits in a way that infringes on a fundamental right, saving money alone may not justify the deprivation. See Plyler v. Doe, 457U.S. 202, 205, 227 (1982); Shapiro v. Thompson, 394 U.S. 618, 633 (1969); Diaz v. Brewer, 656 F.3d 1008, 1010, 1014 (9th Cir. 2011); cf. Perry, 671 F.3d at 1081n.14.
The “public fisc/caution” arguments are combined, and BLAG puts it like this:
Indeed, Congress’ realization that recognizing same-sex marriage for federal purposes would have a large and unpredictable effect on the budgets of various federal agencies—benefitting some agency budgets and substantially burdening others—would be a rational reason to avoid such budgetary turmoil even were there some question whether the overall net effect would be positive or negative. It was perfectly rational for Congress to avoid that uncertainty by maintaining the traditional definition.
BLAG says that marriage has been universally defined as a man and a woman and the federal government could have rationally decided not to alter that definition when the consequences could not be known, that DOMA’s rationality is not solely based on tradition:
DOMA thus was born not of a reflexive adherence to tradition but of an appreciation for these vast benefits and a reluctance to change the institution of marriage in a way that would have unpredictable consequences for them.
Then after spending its pages arguing that DOMA is rational, that it is not based in animus and in fact the choice to allow same-sex marriage is just as rational as the choice to disallow it, and that the law is not based on tradition alone, BLAG makes four points:
1) Congress rationally sought to encourage responsible procreation
2) DOMA rationally focuses on opposite-sex couples in subsidizing the begetting and raising of children
3) DOMA rationally encourages and subsidizes the raising of children by their own biological mothers and fathers
4) DOMA rationally encourages child rearing in a setting with both a mother and a father
So far, every opinion that has been written by judges on this issue in the past couple of years has stressed the lack of a logical link between “rational bases” like these and the actual text of the law. Section 3 of DOMA defines marriage as between a man and a woman for the purpose of federal law. There’s no encouragement for procreation, much less responsible procreation. There’s no focus on opposite sex couples nor is any part of the law geared toward subsidizing the raising of children. Since DOMA has nothing to do with adoption or biological parents, there’s no link between that justification and the law. And lastly, a federal law that simply defines marriage for the purpose of other federal laws can’t encourage child rearing in any setting, much less the particular one with both a biological mother and a biological father.
These are rational purposes for a law, but the law actually has to fulfill these purposes. I don’t see how DOMA does that. These rationales also seem kind of circular. They’re rational because they purposely exclude gays and lesbians from consideration for inclusion in marriage. But the exclusion is the issue here.
These are interesting arguments, particularly the admission that allowing same-sex marriage would be rational, and the cite to Perry suggesting that taking away the rights of gays and lesbians would present constitutional problems. Oral arguments are coming up in September so we’ll see if the Ninth Circuit agrees with any of these.