Marriage in the Balance
BY E.J. Graff
September 24 2012 3:00 AM ET
How cool would it be if you could get married in your state — and be treated as married in all of the United States? This term, the Supreme Court might very well bring us one step closer to that promised land. SCOTUS will almost certainly hear a challenge to 1996 Defense of Marriage Act — and if it does, most observers believe it will declare DOMA’s section 3 unconstitutional. That’s the part that says that, for federal purposes, the definition of marriage is a union between one man and one woman, no matter what your home state says. As I write this, several DOMA challenges are on appeal to our top court; and the justices will soon be considering which ones to accept — but we don’t yet know how they’ll decide.
The court might also decide to review Perry v. Brown, the California Proposition 8 case that — while not a DOMA case — is about (depending on who’s interpreting it) whether same-sex couples have a fundamental right to marry or whether voters can vote to take away a court-appointed constitutional right based on nothing but bias and hatred. Perry is the case brought by the celebrity legal team of Ted Olson and David Boies. And while LGBT advocates want the Supremes to take a DOMA challenge (or two), many really, really, really hope they do not take Perry.
Bring On the Cases
Why? Because the legal questions in the five DOMA cases are more limited — and therefore easier for the Supreme Court to decide in our favor. In all of them, same-sex couples are already lawfully married in their home states and are suing the U.S. because of the cost of being defined federally as single. In the DOMA cases our advocates will be asking the Supreme Court, Does the federal government have the right to pick and choose which state marriages it will recognize, or is that unconstitutional, violating the U.S. Constitution’s promise that each American will be protected equally by the law? There’s another technical question heading up to the court at the same time, which the justices will probably duck: Do LGB folks (“T” isn’t under official consideration here, although they’ll be affected) deserve to be called a legal “protected class,” so that any law that hinges on sexual orientation has to have an extra-super-duper-good reason, lest it be struck down?
Of the five DOMA cases on appeal to the Supreme Court, two Massachusetts cases are farthest along legally: Gill v. Office of Personnel Management, filed by Gay and Lesbian Advocates and Defenders, and Commonwealth of Massachusetts v. Department of Health and Human Services, filed by the state attorney general’s office. In Gill, first filed in March 2009, GLAD originally represented 19 people who had experienced an array of the ways that DOMA harms lawfully married same-sex couples: They had to buy extra health insurance, paid more in federal taxes, were denied a federal pension, and so on.
The Massachusetts AG’s office added two arguments. First, historically the states have been in charge of marriage and family law — and therefore DOMA is an unprecedented federal power grab, unconstitutionally taking over states’ responsibilities. Second, DOMA unconstitutionally forces Massachusetts to discriminate against its own citizens, for instance, by forcing the commonwealth to treat married lesbians and gay men as single for such purposes as Medicaid and Medicare.
As has been true in every DOMA case since, the federal trial court judge in the Massachusetts cases, Joseph L. Tauro, found DOMA section 3 unconstitutional. The First Circuit Court of Appeals agreed, although in far more limited terms, using arguments aimed squarely at the presumed Supreme Court swing vote, Justice Anthony Kennedy. And because it was striking down a federal law — which almost always means the Supreme Court will weigh in — Judge Michael Boudin, who wrote the First Circuit opinion, put a hold on his ruling until the Supremes could make the final decision.
But will the Supreme Court take the Massachusetts cases, or will it take one of the three other DOMA challenges currently alive in the Second and Ninth Circuits? This summer, the Department of Justice asked the Supreme Court to hear not just the Massachusetts cases but also Lambda Legal’s California case Golinski v. Office of Personnel Management — which won at the trial court but hasn’t yet been heard by the Ninth Circuit Court of Appeals. The Department of Justice essentially said to the Supreme Court: Hey, you’re going to decide this in the end, so please consider this one too.