Another US District Court finds no rational basis for DOMA treatment of same sex couples
by Linda Beale
Another US District Court finds no rational basis for DOMA treatment of same sex couples
In a case that will add weight to the likelihood that the Supreme Court will finally take a case to decide the constitutionality of the so-called “defense of marriage act” (DOMA), the U.S. district court for Northern California District concluded on May 24th that sections of DOMA and the internal revenue code that incorporate it (here section7702B(f), which excludes participants in same sex relationships from long-term care insurance coverage) violate the equal protection rights of same-sex couples and registered domestic partners and are therefore constitutionally invalid to the extent they exclude such state employees from enrollment in California’s insurance program. Dragovich v. United States, No. 4P10-cv-01565-CW (N.C. Cal 2012).
Because the Obama administration announced in 2011 that it had concluded that DOMA was unconstitutional and therefore it would no longer defend DOMA in court, the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) argued in defense of the statute.
The judge concluded that BLAG failed to establish a rational relation of Section 3 of DOMA to a legitimate government interest and granted summary judgement regarding the plaintiffs’ claim for access to CalPERS long-term care insurance program.
Other cases are also wending their way up the appeals ladder. (below the fold)
In California, a Ninth Circuit staff attorney employee proceeding for same-sex couple benefit coverage was decided in her favor by Chief Judge Kozcinski but the federal Office of Personnel Management ordered the insurer not to cover her. She took her case to court, winning in the US district court for Northern California in a decision by Judge Jeffrey White. The defendants appealed to the Ninth Circuit . See, e.g., Golinski v. Office of Personnel Management (N.D. Cal.)(order available on Lambda Legal); Karen Golinski Wins Health Care Benefits as Court Declares Defense of Marriage Act Unconstitutional, HuffingtonPost (Feb. 2012); the amicus brief by Eagle Forum opposing an initial en banc hearing (Ninth Circuit, Apr. 30, 2012).
In Boston, the First Circuit in April heard an appeal from two cases in which DOMA was also ruled unconstitutional by district court Judge Tauro. See Appeals Court Hears Arguments on Gay Marriage Law, New York Times (April 4, 2012). In one case, the judge concluded that DOMA compels states to discriminate–by denying funding if they don’t– against same sex couples who are permitted to marry under state law but whose marriage is not recognized for federal law purposes because of DOMA. The other case focussed on the issue of federal discrimination in the provision of federal benefits like Social Security, in contravention of the equal protection clause.
The fate of DOMA is likely ultimately to rest on the Supreme Court Justices and possibly on whether the Court applies “rational basis” or “heightened scrutiny” as the standard for consideration. Gender discrimination has ordinarily been thought to require more than a mere “rational basis” justification. Even the lower rational basis standard, however, should not be satisfied by DOMA: it is an arbitrary law put in place with the sole purpose of ensuring that the benefits of federal laws could not apply to one particular group of Americans–those who have formed same-sex couples. A purpose of discriminating among individuals based solely on their sexual orientation does not appear to be any kind of rational basis for a law.
I have always thought DOMA represented a regressive moment of legislative history and that it should be seen as violating the equal protection guarantee. Marriage is something clearly defined by law and not something inherently defined by some external authority. Hence, for a state to discriminate against its own citizens in denying them the benefits that accompany the legally sanctioned union is problematic. The arguments of the religious right to the contrary are unfounded–the state can sanction marriage between any two individuals and the churches can dictate whatever additional limitations they choose as necessary to the church’s religious doctrine. The rights of same sex couples to marry does nothing to hurt the rights of opposite sex couples or their marriages. People can avoid a church if they don’t agree with its doctrine, but they can’t so easily (in many cases not at all) avoid their state or nation. I hope that the Supreme Court, when it eventually takes one or another of these cases, reaches the correct decision to eliminate this example of blatant invidious discrimination .
crossposted with ataxingmatter
“The arguments of the religious right are unfounded.”
I am not a member of the religious right, and I don’t know what their arguments are, but try this:
Social Security could have been defined in such a way that “you pays your money and you takes your choice… or your benefit.” This would, at the time, and for most of history, have meant that the man worked (for money), paid the tax (premium), and got the benefit. Wife got whatever husband was willing to share. Under some equal rights understanding of the law, that would have been fine… women wanting their own Social Security benefits are perfectly free to get a job and pay the tax.
But because of a tradition that women “stayed home and took care of the kids” the SS law was written to allow a “spousal benefit” meaning that out of the generosity of their hearts all unmarried men subsidized married men and their wives by granting them a benefit that was 50% greater without their having paid a larger tax.
Now… times have changed… we have decided that the male “spouses” of men are entitled to the same generosity, even though, as far as i know, they do not stay home and take care of the kids.
No doubt the time will come, and is coming, when all these gender differences are invisible to the law. And maybe that will be a good thing or a bad thing. But it’s too early to say that the societal special subsidy for married women is “unfounded.”
It seems to me Linda et al want it both ways… women are the equals of men, but they get a special, unpaid for (in the money economy) benefit. and to restore “equality” we will offer the unpaid benefit to men who marry men.
chidren? what does that have to do with anything?
just to be sure the hate mail is properly targeted… i have nothing against gay men or women. but i get a little tired of “there is no reason to discriminate…” other than the fact that Darwin in his heaven thought it expedient to make the women have the babies, while the men just hang around smoking cigarettes.
by the way
Oregon PERS manages its benefits in a way that avoids the question. You get your pension based on what you paid in. If you want to designate a benefiiciary who will get your pension after you die, you may do so, accepting a smaller monthly benefit.. which is actuarially equivalent.. on the theory that the beneficiary is likely to live longer than you do. No mention is made of the gender of the beneficiary.
i should add, i do not oppose gay marriage, though i think out of respect for traditionalists it ought to be called gmarriage.
a domestic partnership should be the limit of the government involvement in marriage. the gays could have had this twenty years ago if they had worked quietly behind the scenes. they could even have church marriages if they can find a church that is okay with that. in any case the government should have nothing to do with church marriage.
am i contradicting what i said above? probably.. the government… that is “society” may have an additional interest in protecting children and, cough, cough, vulnerable women, and might see a need to write laws relative to that…. if it’s not too late.
way too late.
I know a number of families in which the woman is the main breadwinner and the man does the heavy lifting on childcare. (Yes, mom delivered the baby, but if you’ve ever had children, or been a child, you’d realize that it take more than nine months to raise a child. Remember, Darwin’s definition of fitness requires raising the children so they can start having children of their own.) I also know gay couples with children and one partner making a lot more than the other. There’s no reason to shaft one spouse or the other or their children just because of a parity match.
I’m waiting for the argument that SS should drop the survivor’s benefits for children who never put in a damned penny or held a real job.
Given the establishment clause it makes a lot of sense for the government to get out the marriage business completely and just create something new for things like tax filing status, survivor’s benefits and the like.
i wish there was a way to convince people not to read into my argument what is not there.
I know all about men who do the childcare. and i know about gay families.
and, though no one believes me, i have nothing against women or gays. i was for “equal rights” before you were born. still am.
the point i was trying to make is that when you start saying your opponents reasons are “unfounded” you have just destroyed your own ability to think, much less come to a reasonable solution.
we have laws and provisions about “marriage” based in the tradition that women have babies and care for children and need special protections. destroying those provisions, or giving a free ride on them to new classes of “oppressed” people is not something that does not require careful thought.
i think i even said a day may come when women are “truly equal” and those laws and provisions will wither away , but that day is not yet.
and of course, someone has to pay for all this… and the “liberal” attitude that “we’ll just make the rich pay for it” is not a winning position politically, nor is it good mental hygiene.
i agree completely with your agreeing with me.
i am a little iffy to the extent that “survivors benefits” are paid for by other people. it was easy enough to persuade those other people that married women should be looked after, even if it meant a part of their own “premium” (tax) would be used to subsidize them. it might be less easy to persuade us to pay for the benefits of those who did not pay for their own on the claim that they are “just like” married women.
even to the extent that “women” are paid less than men, it is first, not the business of SS to address all the injustices in society. it does what it does very well. trying to make it do everything will kill it. in the second place not ALL women are paid less than men. it offends me to take a class of people and treat them all the same because ‘statistically’ they don’t do as well as some other class. in the third place, a lot of those people seeking extra benefits are actually doing quite well.. so this begins to look to me like just another ill-thought … well, all the things you have heard conservatives call liberals… way to give money to your favorite oppressed minority at the expense of someone else.
so write some laws carefully that address real injustices and i will vote for them myself.
i would even support welfare for the truly needy outside of SS which is not welfare and should not be.
but it takes some intelligence beyond saying that your opponents reasons are “unfounded.”