A flaw in Defense of Marriage Act?

Opinion: July 17, 2010 at 12:00a.m.

By Andrew Koppelman

Los Angeles Times

Last week, a federal court in Massachusetts held unconstitutional the provision of the federal Defense of Marriage Act, known as DOMA, that denies federal benefits to same-sex spouses. The ruling relied on two arguments: that the law interfered with the rights of states guaranteed in the 10th Amendment, and that it violated the Constitution’s equal protection clause. The first of these arguments doesn’t make much sense, but the second is so strong that it has a good chance of being accepted by the U.S. Supreme Court.

Section 3 of DOMA requires that marriage, for all federal purposes, be defined as the union of one man and one woman. It was challenged by the attorney general in Massachusetts, where same-sex marriage is legal, and also in a separate suit by seven married same-sex couples and three widowers in the state who had been in same-sex marriages. The plaintiffs include the surviving spouse of Rep. Gerry Studds, D-Mass., the first openly gay man to serve in Congress. After Studds’ death, his spouse was denied both health insurance and the normal survivor annuity — the only widower of a member of Congress to be refused these benefits.

In the case brought by Massachusetts, the court held that DOMA intrudes on “traditional government functions,” specifically the state’s right to define what marriage is. In the individuals’ cases, it held that there is no rational basis for denying federal benefits to same-sex spouses in marriages legally recognized in their states. The first of these arguments is silly, and potentially mischievous. But the second is very strong, and can and should carry the day if, as is likely, the case is appealed all the way to the Supreme Court.

Counterexample

The trouble with the states’ rights argument is its implication that whenever a federal law uses the word “marriage” to define the scope of some federal program, it is obligated to follow state law. But an obvious counterexample exists: immigration. In most states, the government doesn’t involve itself in the reasons a couple marries, even if there’s no love involved and the marriage is primarily a business transaction or a matter of convenience. But when people marry for immigration purposes, the federal government has no trouble deeming the marriage “fraudulent,” even though it remains valid under state law. The Immigration and Customs Enforcement agency doesn’t interfere with traditional state functions because it leaves the state free to recognize, for its own purposes, any marriage it likes. But it won’t grant legal residency to immigrants it believes married only to secure the benefit.

The other part of the court’s ruling, however, held that DOMA lacked a rational basis because none of the government’s justifications for the law’s blanket discrimination made sense. It’s hard to see, for example, how the law would protect traditional marriage. Are same-sex couples going to be discouraged from marrying because they wouldn’t be entitled to be buried together in a veterans cemetery? Not likely. This irrationality, and the unprecedented burden it imposes — no class of state-recognized marriages has ever before in American history been subjected to this kind of federal discrimination — led the court to infer an unconstitutional purpose: a bare desire to harm a politically unpopular group.

The case will probably be appealed. But will it be upheld? This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.

Swing vote

On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard — appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it “has the peculiar property of imposing a broad and undifferentiated disability on a single named group.”

There’s a lesson in this case for lawyers. There is a temptation in litigation to make every argument you can possibly think of, hoping that something will persuade the judge.

Andrew Koppelman is the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines” (Yale University Press). He wrote this for the Los Angeles Times. Distributed by McClatchy-Tribune Information Services.