June 19, 2012
By Scottie Thomaston
Thanks to Kathleen for this filing
The deadline for filing amicus briefs at the Ninth Circuit Court of Appeals in support of the Bipartisan Legal Advisory Group (BLAG) defending DOMA and seeking to overturn the District Court decision in Golinski v. OPM was June 11. The amici for BLAG want to see the Defense of Marriage Act upheld as constitutional by the Ninth Circuit, so their briefs are intended to provide arguments that help the judges reach that conclusion.
(1) DOMA is entirely consistent with longstanding precedent in which Congress defines terms, including terms related to domestic relations and marriage, as used in federal law
(2) The court below ignored crucial state interests in marriage that amply justify Congress’ decision to enact DOMA
Read what NOM has to say below in the extended entry…
Regarding the first point, NOM argues that the court’s judgment and analysis would result in “forcing Congress to adopt state classifications for purposes of federal statutes.” Calling this development a “reverse Supremacy Clause” they claim, essentially, that the court below erroneously suggested that DOMA is a departure from federalist principles, and that this judgment would allow states to impose their definition of marriage onto the federal government. They rightly point out that while Congress may adopt state classifications for purposes of federal law, it doesn’t have to; but they seem to be inferring something that’s incorrect: namely that a ruling saying DOMA is unconstitutional would necessarily force a definition of marriage onto the federal government rather than making the federal government revert back to its previous stance of neutrality regarding state marriage laws.
They argue that DOMA doesn’t “commandeer” the states, which makes sense – and they cite the First Circuit decision in Massachusetts v. HHS/Gill v. OPM, as backup. Then, they write:
In enacting DOMA, Congress has not infringed upon the powers of any state to regulate matters of family law, even to the point of adopting a contrary definition of marriage. Indeed, since DOMA was adopted, a handful of states have adopted definitions of marriage that differ from the definition in DOMA.
Though, as the First Circuit decision noted, DOMA serves as a deterrent to adopting a definition that includes same-sex couples:
DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i).
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage.
NOM makes the argument that Congress has always “been free” to define terms used in federal statutes, and then they characterize the District Court’s analysis as follows:
Tellingly, not even the plaintiffs have suggested that Congress lacks authority to legislate in the subject matter areas impacted by DOMA (e.g., taxation, immigration, etc.). Instead, they have argued that when regulating in these areas, Congress must defer to each state when the touching on matters also involving marriage or domestic relations. Thus, under the analysis adopted by the court below, Congress may unquestionably legislate in the area of taxation, but must defer to each state in determining who is permitted to file a joint return. Or Congress may regulate immigration status, but must defer to individual state marriage laws in determining whether to grant certain visa or citizenship applications.
Here is how the decision below actually characterized the history of marriage laws before DOMA:
Congress accepted without revision the patchwork of different state marriage definitions regarding, for example, age requirements or marriage among related persons. (See e.g., Declaration of Nancy Cott (“Cott Decl.”) at ¶¶ 26, 51-52, 56-57.) The federal government has continued to defer to the states during unprecedented, hotly contested shifts in state marriage law, especially in the area of interracial marriage.
The strong tradition of federalism mandated that the federal government refrain from inserting itself in the business of domestic relations.
The Court finds that the passage of DOMA, rather than maintaining the status quo in the arena of domestic relations, stands in stark contrast to it. Accordingly, the Court finds that Congressional caution in defining a legislative term and maintaining the status quo does not constitute a rational basis.
Or, more simply: there was no uniform federal marriage law at any point in history. Before Loving v. Virginia ruled that bans on interracial marriage are unconstitutional, some states allowed interracial marriage and some did not, but the federal government didn’t step in and deny federal benefits to interracial couples – they handed out benefits based on a state’s definition of who was married.
NOM says this has “never” been the way the federal government has worked in conjunction with state governments. Then, they admit:
While DOMA may have been the first time in which Congress adopted a single definition of marriage applicable to all federal statutes, Congress has long defined marriage for purposes of federal statutes, even when such definitions may conflict with applicable state law.
NOM cites the recent decision Astrue v. Capato as evidence that “there has never been a special carve-out that requires Congress to defer to state law when federal statutes intersect with domestic relations and marriage.” That case was a debate over the statutory interpretation of a provision of the Social Security Act. The Court ruled that the government agency (in this case the Social Security Administration) put forward a reasonable interpretation of the text of the statute, so they are entitled to deference as a government agency.
In the case, the Court held that for purposes of qualifying for survivor’s benefits, courts should defer to state laws that address estates and wills. NOM claims that the decision means that there is no obligation to defer to state laws, and that in this case they only did so because that’s what Congress wanted. Actually, though, the standard for this type of deference is such that the view of the agency only has to be permissible. There can be other interpretations that are equally valid. In other words, it’s hard to see how this case is relevant to their analysis. The case was about deference to a government agency’s view, per a longstanding rule in the Supreme Court. And anyway, the Court did defer to state law.
NOM then goes through a listing of current laws and pending bills that rely on DOMA’s definition of marriage. The widely cited figure is of course that DOMA affects 1,138 laws in immigration, bankruptcy and other areas, so this is not a surprise.
They address the Respect for Marriage Act (DOMA repeal bill), saying that:
The proposed repeal of DOMA, S.598, would consider same-sex marriages as valid for federal law purposes even if they are not so recognized in the state of the couple. Both of these bills would adopt a uniform federal definition of domestic relations that would conflict with the law of many states.
The Act seems to actually repeal the “uniform federal definition of domestic relations” and to make sure that a marriage is legal if the couple was married in a state in which the marriage was legally allowed. Here’s the relevant text:
‘§ 7. Marriage ‘‘(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. ‘(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.’’
It looks to me like the Act only creates a “uniform” definition in the sense that it says across the board that if a couple is married in a state where it’s legal, they’re in a legal marriage.
NOM then says that Congress has been allowed to define marriage since the 19th century, and they go quite in depth about polygamy and the federal laws against it, and the constitutional challenge to the law Reynolds v. US. The Court had ruled that a conviction for polygamy would stand even after a religious claim was raised against the statute. They said it is constitutional for Congress to regulate marriage:
It is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
The Court’s holding was simply that a religious freedom claim can’t prevent the federal government from writing laws impacting the cornerstone of society. The statutes banning polygamy involved criminal law and criminal behavior that Congress felt could erode society, and claiming it interferes with religious practices was not enough to make it unconstitutional:
This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
NOM argues that DOMA is only a “further requirement” for eligibility to receive federal benefits.
Lastly, NOM argues that the interpretation of history and of DOMA’s impact is “novel” (citing an article from 2010) and would dramatically impact many areas of federal law, forcing the invalidation of laws affecting marriage in all contexts. And they claim the doctrine of preemption – the doctrine that where federal and state laws conflict, the federal law is the one that will remain in use – would be “meaningless” under the court’s rationale.
One final point they make is that it doesn’t matter whether same-sex parents are good parents or whether one type of parent is better than the other (same-sex versus opposite-sex); the state interest in responsible procreation is actually about social approval of married couples:
In the House Report referenced by the court below, Congress referenced a scholarly report noting “marriage is a relationship which the community socially approves and encourages sexual intercourse and the birth of children. It is society’s way of signaling to would-be parents that their long-term relationship is socially important—a public concern, not simply a private affair.” The Report goes on to say: “That, then, is why we have marriage laws. Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”
So, according to NOM, it’s important to have socially-approved couples raising children together in monogamous families in long-term relationships, for society’s sake, as long as they aren’t same-sex couples. Otherwise, this is confusing, because it’s hard to see why same-sex couples couldn’t fit those exact specifications. The long-term health of a same-sex family is just as socially important as that of an opposite-sex family, assuming that society and government should be interested in the first place.
I’m also unsure about their circular reasoning for having marriage in the first place that excludes same-sex couples by its very existence. They are saying that marriage is heterosexual marriage, because there would be no need for marriage whatsoever if it weren’t exclusive to heterosexuals. This is confusing, and leaves families with same-sex parents in an untenable position. But this is from the National Organization for Marriage, so I wouldn’t have expected anything less.