Koppelman: The so-called Defense of Marriage Act’s Achilles heel

Posted by Andrew Koppelman on latimes.com:

"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.

... "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.

"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 In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single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." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.

"Even the states' rights argument could be rehabilitated if, on appeal, Massachusetts focuses on the equality argument. The district court ruled in favor of the state for two independent reasons, only one of which relied on inherent state functions. The other, better argument was that a state can't be required to violate the Constitution in order to get federal funds. If DOMA is unconstitutional because of the way it singles out gay people to beat up on, then states can't be denied federal funds when they refuse to administer it. For example, if DOMA's requirement that same-sex couples be excluded from veterans cemeteries is unconstitutional, then Massachusetts can't lose its federal funding when it buries a same-sex couple in a state-administered veterans cemetery.

"There's a lesson here for lawyers. There is a temptation in litigation to make every argument you can possibly think of, hoping that something will persuade the judge. Here, though, that strategy has backfired: The judge bought both arguments, the bad one as well as the good one, and so his opinion ended up looking weaker than it really is."

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