Defense of Marriage Act Ruled Unconstitutional by Federal Appeals Court
By Virginia E. McGarrity, Robinson & Cole LLP, Hartford, CT1
The Defense of Marriage Act2 (“DOMA”) is a sweeping federal law that excludes same-sex spouses from any of the federal protections of marriage. When first enacted, its impact was limited because same-sex marriage was not legal anywhere in the United States. However, same-sex marriage is now legal in eight states3 and in the District of Columbia, resulting in the application of DOMA and legal challenges to its constitutionality. With its unanimous ruling on May 31, 2012, the U.S. Court of Appeals for the First Circuit became the first federal appellate court to rule that DOMA is unconstitutional.
DOMA, which was enacted by Congress and signed by President Clinton in 1996, provides that the federal government defines marriage as the legal union between a man and a woman, and “spouse” as a person of the opposite sex who is a husband or wife. According to the U.S. Government Accountability Office, there are over 1,000 federal laws under which benefits, rights, and privileges are contingent on marital status or under which marital status is a factor.4 While DOMA does not directly outlaw same-sex marriage, it does deny access to such federal benefits as Social Security survivor benefits, health insurance for federal workers’ spouses, and other medical benefits, as well as barring same-sex couples from filing joint federal tax returns and enjoying income and estate tax benefits applicable to spouses.
In recent years, the Obama administration has attempted to ease the effects of DOMA and to afford certain protections to same-sex couples. As a result of a 2010 presidential memorandum, the Centers for Medicare & Medicaid Services (“CMS”) now require that hospitals implement written policies and procedures regarding visitation rights of patients and prohibit discrimination in visitation on the basis of gender identity or sexual orientation.5 In November of 2011, CMS revised its Conditions of Participation (CoPs) affirming a patient’s right to select a same sex partner to make medical decisions on behalf of the patient in the event of incapacity and to have such partners as visitors. The revised CoPs require all hospitals and critical access hospitals, whether or not they accept Medicare and Medicaid funds, to advise patients of these rights as well as the right to withdraw consent to visitation at any time. In February 2011, Attorney General Holder notified Congress that that the Justice Department would no longer defend DOMA in court.6 Also in 2011, at the behest of President Obama, CMS issued a new State Medicaid Director Letter setting forth the steps that states are permitted to take to extend certain federal protections against homelessness and financial ruin to same-sex spouses of individuals receiving Medicaid long-term care services.7
Despite these recent efforts by the Obama administration, the range of financial benefits and spousal protections denied to same-sex couples as a result of DOMA, including those married under state law, continues to be far-reaching.
The First Circuit’s Ruling
In Gill v. Office of Personnel Management , No. 10-2207, and companion case, Massachusetts v. Department of Health and Human Services, No. 10-2204, the U.S. Court of Appeals for the First Circuit declared Section 3 of DOMA unconstitutional.8 The decision, however, results in conflicting obligations to apply DOMA throughout the country and has, therefore, been stayed pending appeal to the U.S. Supreme Court.
In Gill, the plaintiffs, legally married in Massachusetts, alleged that they had been denied certain federal marriage-based benefits as a result of DOMA and sought to enjoin federal agencies and officials from enforcing DOMA. The companion case to Gill — Commonwealth of Massachusetts v. U.S. Department of Health and Human Services — challenged the validity of DOMA by alleging that Congress overstepped its authority and undermined the states’ efforts to recognize marriage between same sex couples by threatening to revoke federal funding for certain state programs that, as a result of DOMA, must be made available only to heterosexual couples ( for example, burial of Massachusetts veterans and their spouses in state cemeteries for veterans, and participation in the Commonwealth’s Medicaid program).
In a unanimous three-judge panel ruling, the Circuit Court took a cautious approach that was based on recent Supreme Court precedents outlawing discrimination against “historically disadvantaged or unpopular” minority groups.9 The Circuit Court said that it could not use the easy-to-satisfy “rational basis” review, but rather must examine the differing treatment, the burden imposed, and the failings in the justifications offered by lawmakers more closely in each case.10
The Circuit Court also cited federalism principles that defer to states’ powers in areas traditionally reserved to state regulation (that is, domestic relations) in finding DOMA unconstitutional. Although Congress has an interest in who is considered to be legally married, the Circuit Court noted that the denial of federal benefits to same-sex couples burdens the choice of states to regulate marriage. The Circuit Court went on to examine, and to reject, the justifications put forward for Section 3, such as “preserving scarce government resources,” “support[ing] child-rearing in the context of stable marriage,” “moral disapproval of homosexuality,” and a desire to “freeze” the issue pending changes in state marriage laws.11
The Circuit Court ruled that the denial of federal benefits to lawfully married same-sex couples had not been adequately supported by any permissible federal interest and, consequently, affirmed the judgment of the U.S. District Court.12 Expecting the decision to be appealed and heard by the Supreme Court, the Circuit Court stayed the implementation of its decision pending such appeal.
Other Recent DOMA Challenges
Following on the heels of the First Circuit’s decision, the U.S. Court of Appeals for the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown,13 which held that California’s constitutional amendment banning same-sex marriage violates the federal Constitution’s Equal Protection Clause.14
In Windsor v. U.S., 2012 U.S. Dist. LEXIS 79454 (S.D.N.Y. 2012), the U.S. District Court for the Southern District of New York ruled that DOMA is unconstitutional as applied to the plaintiff, who filed suit to recoup more than $350,000 in federal estate taxes she was forced to pay on the assets she inherited from her same-sex spouse in a marriage recognized by New York state. The court cited the First Circuit’s ruling in Gill and found that the plaintiff was denied equal protection of the laws.
In Connecticut, the case of Pedersen, et al. v. Office of Personnel Management, 3:10-CV-01750 (D.C. Connecticut, Nov. 9, 2010), the U.S. District Court for the District of Connecticut ruled DOMA unconstitutional on the basis that the plaintiffs, all same-sex couples from Connecticut, Vermont, and New Hampshire, were denied legal protections afforded to similarly-situated residents in opposite-sex marriages. The Pedersen case will likely be appealed to the Second Circuit, where it could be consolidated with the Windsor case, whose plaintiff has requested that the court allow for an expedited schedule. In all likelihood, there may very well be a brief filed by the plaintiffs seeking to skip the appellate court review and go straight to the Supreme Court, as has been requested in the Windsor case.
Gill marks the first time that a challenge to DOMA has been heard by a federal appeals court. If the Supreme Court denies certiorari and the First Circuit Court’s ruling stands, it would affect only same-sex couples within the First Circuit — Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico — but it could serve as a constitutional precedent for challenging other limits or bans on same-sex marriage in any state.
The First Circuit’s decision has been stayed and does not currently have any effect. However, the impact of the Supreme Court’s repeal of DOMA may cause federal law to defer to state law determinations of otherwise valid marriages. Federal laws governing employee health and retirement benefit plans then might require employers to treat employees’ same-sex and opposite-sex spouses equally for benefits purposes. For example, in the retirement plan context, employers with retirement plans might be required to recognize same-sex spouses for purposes of determining surviving spouse annuities or death benefits under their retirement plans.
Similarly, in the welfare plan context, items such as the federal income tax treatment of health coverage for an employee’s same-sex spouse might change such that employees would no longer have to be taxed on the amount of the employer’s contribution to the same-sex spouse’s coverage, and offering COBRA continuation coverage to same-sex spouses could be required. Employers might also be required to permit employees to take family and medical leave to care for an ill same-sex spouse.
The continued uncertainty and complexity left in the wake of the First Circuit’s decision, paired with the Ninth Circuit’s decision, raises the possibility that the Supreme Court may weigh in on the issue sooner rather than later. Although the issues in both cases differ, a number of cases are currently being litigated that address constitutional issues surrounding DOMA15 and both the Gill and Perry cases would present the Supreme Court with the opportunity to address these fundamental issues that are of great interest to all.
Virginia McGarrity is an attorney at Robinson & Cole LLP in the Employee Benefits and Executive Compensation Group. Ms. McGarrity counsels tax-exempt organizations, hospitals, health systems, and both private and public employers on a wide range of health and welfare benefits matters, including issues related to healthcare reform. Ms. McGarrity also assists clients with respect to benefits issues associated with corporate transactions and provides benefits advice regarding mergers and acquisitions. She may be reached at (860) 275-8291 or by email at firstname.lastname@example.org. The views expressed in this article are those of the author and not necessarily those of Robinson & Cole LLP.
|2 ||1 U.S.C. § 7 (1996).|
Connecticut, Iowa, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington.
Centers for Medicare & Medicaid Services, Federal Register 42 CFR Parts 482 and 485. Available at: http://edocket.access.gpo.gov/2010/pdf/2010-29194.pdf.
Gill, at 16.
Rational basis review is a test used to determine a law’s constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review and is generally used where no fundamental rights or suspect classifications are at issue.
|11 ||Gill, at 26.|
On July 8, 2010, the U.S. District Court found section 3 of DOMA unconstitutional. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010); Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
|14 ||The Perry v. Brown decision only applies to the California because California is the only state within the Ninth Circuit Court of Appeals’ jurisdiction that has granted, and then rescinded, same-sex marriage. As the decision has been stayed, the constitutional amendment (“Prop 8”) will remain in effect and the proponents will have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari.|
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