February 14, 2013
By Scottie Thomaston
Amicus curiae (“friend of the court”) briefs in support of Edith Windsor in United States v. Windsor, the case challenging Section 3 of DOMA, aren’t due until the end of the month but at least one has already been filed: the brief for Citizens for Responsibility and Ethics in Washington (CREW). CREW is a nonpartisan ethics watchdog group whose goal is “to protect the rights of citizens to be informed about the activities of government officials and to ensure the integrity of those officials.”
CREW filed a brief in some of the other DOMA cases and in the Second Circuit for this case.
They argue that Section 3 of DOMA’s definitions of “marriage” as only between a man and a woman and of “spouse” as only a member of the opposite sex have perverse effects on ethics laws, judicial recusal standards, taxes, and other areas.
As the brief states in a summary:
Not only does DOMA not advance any valid purposes, but DOMA’s differential treatment of the same-sex marriage of plaintiff Windsor and her deceased spouse, and other similarly situated married couples, undermines important protections in federal laws in three areas: conflicts of interest, federal income taxation, and bankruptcy. By preferring marriages by same-sex couples over marriages by opposite-sex couples in a number of ways, DOMA produces perverse results that a rational Congress could not have intended. In challenging DOMA, plaintiff and other same-sex spouses like her seek not only the federal protections and benefits that stem from recognition of their marriages, but also demonstrate their willingness to share the same burdens and obligations imposed by federal law on other married couples.
These results include interpretations of law that disfavor gays and lesbians:
It is also a federal crime to retaliate against a federal official by threatening or injuring an immediate family member of the official. 18 U.S.C. §115(a). “Immediate family member” is defined to include the official’s spouse and any other person related by marriage. Id. at § 115(c)(2). By excluding same-sex spouses from the definition of “spouse,” however, DOMA effectively decriminalizes retaliation when committed against a same-sex spouse of a federal official.
But, the brief points out, it oddly favors same-sex couples in some ways:
Similarly, the Stop Trading on Congressional Knowledge Act, known as the STOCK Act, was enacted in 2012 in response to public concern that members of Congress were trading stock on inside information. S. Rep. No. 112-244, at 1-2 (2012). The statute amended EIGA to require both members of Congress and executive branch officials to report certain stock sales or purchases within 45 days. 5 U.S.C. App. 4 § 103(l). Congress subsequently passed further legislation to clarify that stock transactions made by spouses (and children) of covered officials must be reported. 5 U.S.C. App. 4 §103 note; Pub. L. No. 112-173, 126 Stat. 1310. Under DOMA, however, the same transactions made by same-sex spouses are exempt from disclosure.
And it undermines anti-nepotism and judicial recusal laws:
DOMA also thwarts the goals of “anti-nepotism” and judicial recusal laws. Under the federal anti-nepotism law, public officials are prohibited from appointing, employing, promoting, or advancing “any individual who is a relative of the public official.” 5 U.S.C. § 3110(b); see also 5 U.S.C. § 2302(b)(7) (forbidding advocating the appointment or employment of a relative, including a spouse).
In the federal judicial system,district judges are empowered to appoint magistrate judges. 28 U.S.C. § 631. That power is limited to appointing individuals who are “not related by blood or marriage to a judge of the appointing court or courts . . .” Id. at § 631(b)(4).
DOMA has an equally irrational effect on judicial recusal laws. All federal justices, judges, and magistrate judges are required to disqualify themselves in a variety of circumstances, including where theirspouse[s] . . . ha[ve] a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
28 U.S.C. § 455(b)(4). Further, judges are required to “make a reasonable effort to inform [themselves] about the personal financial interests of [their] spouse[s] . . .” Id. at § 455(c). Yet DOMA operates to excuse judges in same-sex marriages from these recusal requirements, meaning a judge can preside over a proceeding in which his or her same-sex spouse has a substantial financial interest, despite the obvious conflict this presents.
And one of the main defenses of DOMA and state anti-gay marriage laws is that the laws incentivize heterosexuals to get married and stay together to raise children. The House Report on DOMA (and the decision in Sevcik v. Sandoval, the Nevada marriage equality case) even suggested that less straight people would get married if gays had incentives to do that.
A second is that tax incentives and government benefits should go to heterosexual married couples as a way to preserve scarce resources.
DOMA’s effects don’t seem to fit with these goals:
Indeed, the notion that the Congress that enacted DOMA intended to provide low income same-sex married couples and their families more taxpayer dollars than opposite-sex married couples in identical financial circumstances is antithetical to the stated position of DOMA’s supporters that the federal government should not support same-sex married couples in any way. In fact, expanding federal benefits directly contradicts one of the central justifications proffered for DOMA when it was passed. See H.R. Rep. No. 104-664, at 18 (1996)(“To deny federal recognition to same-sex ‘marriages’ will thus preserve scarce government resources, surely a legitimate government purpose.”)
DOMA’s unthinking, across-the-board exclusion of same-sex married couples from all federal laws relating to marriage creates irrational effects on federal laws, especially those dealing with conflicts of interest, income taxation, and bankruptcy. If DOMA were not indefensible on its own, the illogical, indeed incomprehensible, impact of the statute on federal laws conclusively demonstrates its irrationality. In short, the Defense of Marriage Act is simply indefensible, and the judgment below setting it aside should be affirmed.
Briefs in support of Windsor are due at the end of the month, and we expect many more will be filed.
h/t Kathleen as usual for this filing