Deconstructing DOMA

07/20/2010 12:33 pm ET | Updated May 25, 2011
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

In his recent decision in Gill v. Office of Personnel Management, federal judge Joseph L. Tauro held unconstitutional Section 3 of the Defense of Marriage Act (DOMA). In reaching this result, Judge Tauro, who was appointed by Richard Nixon, addressed a subtle but important issue of constitutional law.

The federal government provides many benefits to married couples. For example, the spouse of a federal employee is entitled to medical coverage, the spouse of an individual covered by Social Security is eligible for retirement and survivor benefits, and married couples who file joint tax returns usually pay considerably lower federal income taxes than individuals who file separately.

Before 1996, all federal programs providing marriage benefits left the definition of "marriage" entirely to the states. If a couple was legally married under state law, then they were "married" for purposes of federal law. This was so even though States often have quite different rules about marriage. Some states, for example, recognize common law marriage, most do not. Some states allow people to marry without parental consent at age of 15, others require them to be at least 18. Some states permit individuals to terminate a marriage without any finding of fault, others do not. In all these circumstances, federal law defers to the state's definition of marriage. Indeed, from the very founding of our nation, the definition of marriage has been understood to be a state -- rather than a federal -- responsibility.

In 1996, however, Congress suddenly jettisoned this deeply-rooted tradition and attempted to interpose a new federal definition of marriage.The precipitating event was a debate in Hawaii over the legal recognition of same-sex marriage. Vilifying gays as "immoral" and "depraved," and condemning same-sex marriage as "perverse" and as "an attack on God's principles," members of Congress pushed through Section 3 of DOMA, which for the first time in our nation's history adopted a federal definition of marriage, confining "marriage" for federal purposes to only those legally-recognized marriages that are "between one man and one woman."

What makes the Gill case so interesting is that it raises a question somewhat different from that posed by State laws that decline to recognize same-sex marriage. Because the states have primary authority over the institution of marriage, they can appropriately consider a broad range of factors in deciding who can marry, in what circumstances, and subject to what conditions. The federal government, on the other hand, has no such authority.

For example, a state can lawfully enact a law prohibiting any person under the age of 18 to marry, but for Congress to enact such a law would clearly intrude on the authority of the States. Similarly, whether or not a state can constitutionally prohibit same-sex marriage, Congress plainly has no authority to do so.

DOMA, however, does not go that far. It does not prohibit States from legalizing same-sex marriage. Rather, it refuses to defer to a State's definition of marriage, insofar as it embraces same-sex marriage, for the purpose of determining eligibility for federal benefits. DOMA therefore poses an interesting puzzle. The federal government is under no obligation to provide special benefits to married couples, but if it chooses to do so can it discriminate against some marriages and not others"? This question implicates the constitutional guarantee of "equal protection of the laws."

For example, the government need not provide any health benefits to its employees, but if it chooses to do so it cannot constitutionally deny those benefits to particular employees because they are black, or women, or Mormon, or of Irish ancestry. The greater power - not to provide benefits at all - does not necessarily include the lesser power - to provide benefits only to some employees, but not others. This is at the very heart of the constitutional guarantee of equality.

Of course, differential treatment of different people is not always unconstitutional. If it was, then legislation would be pretty much impossible. For example, although the government cannot deny health benefits to employees because they are black or Mormon, it presumably can deny such benefits to employees who work only part-time.

In giving meaning to the constitutional guarantee of equality, the Supreme Court has focued on three types of situations. First, a law may discriminate against a group that, like blacks and women, has historically been discriminated against on the basis of a more or less immutable characteristic. Second, a law may discriminate between individuals with respect to a fundamental interest, such as the right to vote or the right to procreate. In these first two situations, the Court generally applies a very demanding standard of justification in deciding whether the inequality is constitutional.

In Gill, the court might have invoked either or both of these arguments, for sexual orientation is arguably analogous to race and gender, and marriage is arguably a fundamental interest. Judge Tauro, however, found it unnecessary to address those questions.

Instead, he analyzed DOMA as if it fell into the third situation, which consists of laws that neither implicate a fundamental interest nor discriminate against a group that is analogous to blacks and women. In this third situation, the Supreme Court generally finds a law constitutional if it rationally furthers a legitimate government interest. This would be the case, for example, if the government denied health benefits to part-time employees.

In Gill, Judge Tauro held that DOMA's discrimination against legally-married same-sex couples failed to satisfy even this more deferential standard. In enacting Section 3, members of Congress argued that the denial of equal benefits to same-sex couples who are legally-married under state law encourages "responsible procreation," promotes "heterosexual marriage," and preserves "morality." But whatever one thinks of these interests when offered in defense of a State's decision not to recognize same-sex marriage, they carry much less weight when advanced by Congress to justify discrimination against couples who are already legally married. And this is especially true in a realm in which Congress traditionally has no business meddling in the first place.

Moreover, the Supreme Court has long recognized that the government can never lawfully treat one group of people worse than others because the majority deems that group "immoral," "depraved," unworthy, or sinful according to "God's principles." Such animus is not a constitutionally legitimate basis for government action. Yet this seems to be precisely what motivated Section 3 of DOMA.

Indeed, if we acknowledge, as we must, that Congress had never before second-guessed a state's definition of marriage, and that the interests said to justify Section 3 have traditionally been understood to be within the exclusive domain of the States, it is difficult not to wonder what was really going on in Congress when it enacted DOMA.

After all, if Congress was truly serious about its purported justifications for DOMA, then it would have re-defined "marriage" to exclude other "depraved" or "immoral" unions. For example, it might have held that convicted mass murderers, child molesters, rapists, and adulterers cannot "marry" for purposes of receiving marriage benefits under federal law. But Congress apparently saw no reason to second-guess the states in their decisions to allow such persons to marry. It was only on the issue of sexual orientation that Congress saw fit to intervene.

In such circumstances, it is hard not to conclude that Section 3 of DOMA was designed, not to promote a constitutionally legitimate federal interest, but to enforce a distinctive animus against homosexuals. And it was precisely for this reason that Judge Tauro, following two major Supreme Court precedents invalidating other laws that discriminated on the basis of sexual orientation, rightly declared this congressional travesty unconstitutional.