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2012 Section 7: Gay Rights Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VII. Gay Rights In This Section:

New Case and Topic: Defense of Marriage Act (looking ahead) p.432

12-15 Department ofHealth and Human Services v. Massach1lsetts 12-13 Bipartisan Legal Advisory Gro1lp of the United States HOllse of Representatives v. Gill 12-16 Office ofPersonnel Management v. Golinski 12-63 Windsor v. United States 12-97 Commonwealth ofMassach1lsetts v. Department ofHealth & Human Services

Synopsis and Questions Presented p.432

"SUIT CITES STATES' RIGHTS ON BEHALF OF GAY RIGHTS" p.444 Adam Liptak

"U.S. FILES DOMA CHALLENGES" p.446 Lyle Denniston

"KEY PART OF FEDERAL GAY MARRIAGE LAW RULED p.447 UNCONSTITUTIONAL" David G. Savage

"ApPEALS COURT HEARS ARGUMENTS ON GAY MARRIAGE LAW" p.451 Abby Goodnough

"COURT PUTS REVIEW OF DOMA RULING ON HOLD" p.453 Bob Egelko

"83-YEAR-OLD ASKS SUPREME COURT TO REVIEW GAY MARRIAGE BAN" p. 454 Terry Baynes

"OBAMA TEAM WON'T DEFEND DEFENSE OF MARRIAGE ACT" p.456 Kevin Johnson and Joan Biskupic

New Case: 12-144 Hollingsworth v. Perry (looking ahead) p.458

"COURT STRIKES DOWN BAN ON GAY MARRIAGE IN CALIFORNIA" p.458 Adam Nagourney

"GAY MARRIAGE FIGHT MAY HINGE ON SUPREME COURT'S ANTHONY p.461 KENNEDY" David G. Savage

430 "FURTHER PROP. 8 REVIEW DENIED BY COURT OF ApPEALS" p.462 Lyle Denniston

"GAY-MARRIAGE FOES SEEK HIGH COURT REVIEW" p.465 Jess Bravin

New Case: 12-23 Brewer v. Diaz (looking ahead) p.467

"A NEW TEST ON GAY RIGHTS" p.467 Lyle Denniston

"SAME-SEX PARTNER BENEFITS CAN'T BE CUT OFF" p.470 Bob Egelko

431 Massachusetts v. United States Department ofHealth and Human Services

No. 12-15

Ruling Below: Massachusetts v. Us. Dept. ofHealth & H1lman Services, 682 F.3d 1 (lst Cir. 2012),petitionfor cert.fzled, 2012 WL 2586937 (U.S. 2012).

Section 3 of the Defense of Marriage Act (DOMA) defines the term "marriage" for all purposes under federal law as "only a legal union between one man and one woman as husband and wife." It also defines "spouse" as "a person of the opposite sex who is a husband or a wife." In Gill v. Office of Personnel Management, seven homosexual couples and three surviving spouses married in Massachusetts sued to enjoin agencies and officials from enforcing DOMA and denying them federal benefits that were otherwise available to heterosexual couples. In Massachusetts v. United States Department of Health and H1Iman Services, Massachusetts brought a companion case out of concern for losing federal funding for programs such as Medicaid and veterans' cemeteries. With opinions released on the same day, District Court Judge Tauro held that Section 3 of DOMA was unconstitutional under the Fifth Amendment, and it violated the Spending Clause and Tenth Amendment. These cases were joined on appeal to the Court of Appeals for the First Circuit, which affirmed the district court's decision that DOMA was unconstitutional on equal protection grounds while rejecting the Spending Clause and Tenth Amendment rationales.

Question Presented: Whether Section 3 of the Defense of Marriage Act, 1 U.S.c. 7, violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

Commonwealth of MASSACHUSETTS, Plaintiff, Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et aI., Defendants, Appellants.

Dean Hara, Plaintiff, Appellee/Cross-Appellant; Nancy Gill, et aI., Plaintiffs, Appellees; Keith Toney, et aI., Plaintiffs, v. Office of Personnel Management, et aI., Defendants, Appellants/Cross-Appellees; Hillary Rodham Clinton, in her official capacity as United States Secretary of State, Defendant.

United States Court of Appeals for the First Circuit

Decided May 31, 2012

[Excerpt; some footnotes and citations omitted.]

BOUDIN, Circuit Judge. These appeals present constitutional challenges to section 3 of the Defense of

432 Marriage Act ("DOMA"), 1 U.S.c. § 7, union between one man and one woman as which denies federal economic and other husband and wife, and the word "spouse" benefits to same-sex couples lawfully refers only to a person of the opposite sex married in Massachusetts and to surviving who is a husband or a wife. spouses from couples thus married. Rather than challenging the right of states to define Section 2, which is not at issue here, marriage as they see fit, the appeals contest absolves states from recognizing same-sex the right of Congress to undercut the choices marriages solemnized in other states. made by same-sex couples and by individual states in deciding who can be married to DOMA does not formally invalidate same­ whom. sex marriages in states that permit them, but its adverse consequences for such a choice In 1993, the Hawaii Supreme Court held that are considerable. Notably, it prevents same­ it might violate the Hawaii constitution to sex married couples from filing joint federal deny marriage licenses to same-sex couples. tax returns, which can lessen tax burdens, Baehr v. Lewin, 74 Haw. 530 (1993). see 26 U.S.C. § 1(a)-(c), and prevents the Although Hawaii then empowered its surviving spouse of a same-sex marriage legislature to block such a ruling, Haw. from collecting Social Security survivor Const. art. I, § 23-which it did, Act of June benefits, e.g., 42 U.S.c. § 402(f), (i). 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. DOMA also leaves federal employees 2312) (codified at Haw.Rev.Stat. § 572- unable to share their health insurance and 1)-the Hawaii decision was followed by certain other medical benefits with same-sex legalization of same-sex marriage in a small spouses. minority of states, some by statute and a few by judicial decision; many more states DOMA affects a thousand or more generic responded by banning same-sex marriage by cross-references to marriage in myriad statute or constitutional amendment. federal laws. In most cases, the changes operate to the disadvantage of same-sex Congress reacted with the same alarm as married couples in the half dozen or so many state legislatures. Within three years states that permit same-sex marriage. The after the Hawaii decision, DOMA was number of couples thus affected is estimated enacted with strong majorities in both at more than 100,000. Further, DOMA has Houses and signed into law by President potentially serious adverse consequences, Clinton. The entire statute, reprinted in an hereafter described, for states that choose to addendum to this decision, must-having legalize same-sex marriage. only two operative paragraphs-be one of the shortest major enactments in recent In Gill v. OPM, No. 10-2207, seven same­ history. Section 3 of DOMA, 1 U.S.c. § 7, sex couples married in Massachusetts and defines "marriage" for purposes of federal three surviving spouses of such marriages law: brought suit in federal district court to enjoin pertinent federal agencies and officials from In determining the meaning of any Act of enforcing DOMA to deprive the couples of Congress, or of any ruling, regulation, or federal benefits available to opposite-sex interpretation of the various administrative married couples in Massachusetts. The bureaus and agencies of the United States, Commonwealth brought a companion case, the word "marriage" means only a legal Massach1lsetts v. DHHS, No. 10-2204,

433 concerned that DOMA will revoke federal The Justice Department filed a brief in this funding for programs tied to DOMA's court defending DOMA against all opposite-sex marriage definition-such as constitutional claims. Thereafter, altering its Massachusetts' state Medicaid program and position, the Justice Department filed a veterans' cemeteries. revised brief arguing that the equal protection claim should be assessed under a By combining the income of individuals in "heightened scrutiny" standard and that same-sex marriages, Massachusetts' DOMA failed under that standard. It Medicaid program is noncompliant with opposed the separate Spending Clause and DOMA, and the Department of Health and Tenth Amendment claims pressed by the Human Services, through its Centers for Commonwealth. The Gill plaintiffs defend Medicare and Medicaid Services, has the district court judgment on all three discretion to rescind Medicaid funding to grounds. noncomplying states. Burying a veteran with his or her same-sex spouse removes federal A delay in proceedings followed the Justice "veterans' cemetery" status and gives the Department's about face while defense of Department of Veterans' Affairs discretion the statute passed to a group of Republican to recapture all federal funding for the leaders of the House of Representatives­ cemetery. the Bipartisan Legal Advisory Group ("the Legal Group")-who retained counsel and The Department of Justice defended DOMA intervened in the appeal to support section 3. in the district court but, on July 8, 2010, that A large number of amicus briefs have been court found section 3 unconstitutional under filed on both sides of the dispute, some on the Equal Protection Clause. Gill v. Office of both sides proving very helpful to the court. Pers. Mgmt., 699 F.Supp.2d 374, 397 (D.Mass.2010). In the companion case, the On appeal from a grant of summary district court accepted the Commonwealth's judgment, our review is de novo, Kuperman argument that section 3 violated the v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011), Spending Clause and the Tenth Amendment. and the issues presented are themselves legal Massachusetts v. u.s. Dep't of Health & in character, even though informed by Human Sen!s., 698 F.Supp.2d 234, 249, 253 background information as to legislative (D. Mass.20 10). purpose and "legislative facts" bearing upon the rationality or adequacy of distinctions The district court's judgment declared drawn by statutes. E.g., FCC v. Beach section 3 unconstitutional and enjoined the Commc'ns, Inc., 508 U.S. 307, 314-20 federal officials and agencies from enforcing (1993). Such information is normally section 3, but the court stayed injunctive noticed by courts with the assistance of relief pending appeals. The judgment briefs, records and common knowledge. included specific remedies ordered for the Daggett v. Comm 'n on Governmental Ethics named plaintiffs in relation to tax, social & Election Practices, 172 F .3d 104, 112 (l st security and like claims. With one Cir.1999). qualification--discussed separately below­ the federal defendants have throughout This case is difficult because it couples focused solely upon the district court's issues of equal protection and federalism premise that DOMA is unconstitutional. with the need to assess the rationale for a

434 congressional statute passed with minimal (1996), but neither mandates that the hearings and lacking in formal findings. In Constitution requires states to permit same­ addition, Supreme COUli precedent offers sex marriages. A Supreme Court summary some help to each side, but the rationale in dismissal "prevent[ s] lower courts from several cases is open to interpretation. We coming to opposite conclusions on the have done our best to discern the direction precise issues presented and necessarily of these precedents, but only the Supreme decided by those actions." Mandel v. Court can finally decide this unique case. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own Although our decision discusses equal case but it does limit the arguments to ones protection and federalism concerns that do not presume or rest on a separately, it concludes that governing constitutional right to same-sex marriage. precedents under both heads combine-not to create some new category of "heightened Central to this appeal is Supreme Court case scrutiny" for DOMA under a prescribed law governing equal protection analysis. The algorithm, but rather to require a closer than Gill plaintiffs say that DOMA fails under usual review based in pati on discrepant the so-called rational basis test, traditionally impact among married couples and in part used in cases not involving "suspect" on the importance of state interests in classifications. The federal defendants said regulating marriage. Our decision then tests that DOMA would survive such rational the rationales offered for DOMA, taking basis scrutiny but now urge, instead, that account of Supreme Court precedent DOMA fails under so-called intermediate limiting which rationales can be counted and scrutiny. In our view, these competing of the force of celiain rationales. formulas are inadequate fully to describe governing precedent. Eqllal Protection. The Legal Group says that any equal protection challenge to DOMA is Certain suspect classifications-race, foreclosed at the outset by Baker v. Nelson, alienage and national origin-require what 409 U.S. 810 (1972). There, a central claim the Court calls strict scrutiny, which entails made was that a state's refusal to recognize both a compelling governmental interest and same-sex marriage violated federal equal narrow tailoring. Adarand Constructors, Inc. protection principles. Minnesota had, like v. Pena, 515 U.S. 200, 227 (1995). Gender­ DOMA, defined marriage as a union of based classifications invoke intermediate persons of the opposite sex, and the state scrutiny and must be substantially related to supreme court had upheld the statute. On achieving an impOliant governmental appeal, the Supreme COUli dismissed objective.s Both are far more demanding summarily for want of a substantial federal than rational basis review as conventionally question. ld. applied in routine matters of commercial, tax and like regulation. Baker is precedent binding on us unless repudiated by subsequent Supreme COUli Equal protection claims tested by this precedent. Hicks v. Miranda, 422 U.S. 332, rational basis standard, famously called by 344 (1975). Following Baker, "gay rights" Justice Holmes the "last resort of claims prevailed in several well known constitutional argument," Blick v. Bell, 274 decisions, Lawrence v. Texas, 539 U.S. 558 U.S. 200,208 (1927), rarely succeed. Courts (2003), and Romer v. Evans, 517 U.S. 620 accept as adequate any plausible factual

435 basis, Williamson v. Lee Optical of military, pointing out that Romer itself Oklahoma, Inc., 348 U.S. 483, 487-88 avoided the suspect classification label. (l955), without regard to Congress' actual Cook, 528 F.3d at 61-62. This binds the motives. Beach Commc'ns, 508 U.S. at 314. panel. San J1lan Cable LLC v. P.R. Tel. Co., Means need not be narrowly drawn to 612 FJd 25,33 (lst Cir.2010). meet-or even be entirely consistent with­ the stated legislative ends. Lee Optical, 348 Second, to create such a new suspect U.S. at 487-88. classification for same-sex relationships would have far-reaching implications-in Under such a rational basis standard, the Gill particular, by implying an overruling of plaintiffs cannot prevail. Consider only one Baker, which we are neither empowered to of the several justifications for DOMA do nor willing to predict. Nothing indicates offered by Congress itself, namely, that that the Supreme Court is about to adopt this broadening the definition of marriage will new suspect classification when it reduce tax revenues and increase social conspicuously failed to do so in Romer-a security payments. This is the converse of case that could readily have been disposed the very advantages that the Gill plaintiffs by such a demarche. That such a are seeking, and Congress could rationally classification could overturn marriage laws have believed that DOMA would reduce in a huge majority of individual states costs, even if newer studies of the actual underscores the implications. economic effects of DOMA suggest that it may in fact raise costs for the federal However, that is not the end of the matter. government. Without relying on suspect classifications, Supreme Court equal protection decisions The federal defendants conceded that have both intensified scrutiny of purported rational basis review leaves DOMA intact justifications where minorities are subject to but now urge this court to employ the so­ discrepant treatment and have limited the called intermediate scrutiny test used by permissible justifications. And (as we later Supreme Court for gender discrimination. explain), in areas where state regulation has Some similarity exists between the two traditionally governed, the Court may situations along with some differences, require that the federal government interest compare Frontiero v. Richardson, 411 U.S. in intervention be shown with special 677, 682-88 (l973) (plurality opinion). But clarity. extending intermediate scrutiny to sexual preference classifications is not a step open In a set of equal protection decisions, the to us. Supreme Court has now several times struck down state or local enactments without First, this court in Cook v. Gates, 528 F.3d invoking any suspect classification. In each, 42 (lst Cir.2008), cert. denied, - U.S. -, the protesting group was historically 174 L.Ed.2d 284 (2009), has already disadvantaged or unpopular, and the declined to create a major new category of statutory justification seemed thin, "suspect classification" for statutes unsupported or impermissible. It is these distinguishing based on sexual preference. decisions-not classic rational basis Cook rejected an equal protection challenge review-that the Gill plaintiffs and the to the now-superceded "Don't Ask, Don't Justice Department most usefully invoke in Tell" policy adopted by Congress for the their briefs (while seeking to absorb them

436 into different and more rigid categorical legitimate state interests." Jd. at 632-33, lUbrics). 635.

The oldest of the decisions, u.s. Dept. of These three decisions did not adopt some Agric. v. Moreno, 413 U.S. 528 (1973), new category of suspect classification or invalidated Congress' decision to exclude employ rational basis review in its from the food stamp program households minimalist form; instead, the Court rested on contaInIng unrelated individuals. the case-specific nature of the discrepant Disregarding purported justifications that treatment, the burden imposed, and the such households were more likely to infirmities of the justifications offered. under-report income and to evade Several Justices have remarked on this­ detection, the Court closely sClUtinized the both favorably, City of Cleb1lrne, 473 U.S. legislation's fit-finding both that the lUle at 451-55 (1985) (Stevens, 1., concurring), disqualified many otherwise-eligible and and unfavorably, United States v. Virginia particularly needy households, and a "bare (VMJ), 518 U.S. 515, 567 (1996) (Scalia, 1., congressional desire to harm a politically dissenting). unpopular group." Jd. at 534, 537-38. Circuit courts, citing these same cases, have The second, City of Cleb1lrne v. Cleb1lrne similarly concluded that equal protection Living Ctr., 473 U.S. 432 (1985), overturned assessments are sensitive to the a local ordinance as applied to the denial of circumstances of the case and not dependent a special permit for operating a group home entirely on abstract categorizations. As one for the mentally disabled. The Court found distinguished judge observed: unconvincing interests like protecting the inhabitants against the risk of flooding, Judges and commentators have noted given that nursing or convalescent homes that the usually deferential "rational were allowed without a permit; mental basis" test has been applied with disability too had no connection to alleged greater rigor in some contexts, concerns about popUlation density. All that particularly those in which courts remained were "mere negative attitudes, or have had reason to be concerned fear, unsubstantiated by factors which are about possible discrimination. properly cognizable In a zonmg proceeding." Jd. at 448. United States v. Then, 56 F.3d 464, 468 (2d Cir.1995) (Calabresi, 1., concurring) (citing Finally, in Romer v. Evans, 517 U.S. 620 City of Cleb1lrne as an example). There is (1996), the Court struck down a provision in nothing remarkable about this: categories Colorado's constitution prohibiting are often approximations and are themselves regulation to protect homosexuals from constructed by weighing of underlying discrimination. The Court, calling elements. "unprecedented" the "disqualification of a class of persons from the right to seek All three of the cited cases-Moreno, City of specific protection from the law," deemed Cleb1lrne and Romer-stressed the historic the provision a "status-based enactment patterns of disadvantage suffered by the divorced from any factual context from group adversely affected by the statute. As which we could discern a relationship to with the women, the poor and the mentally

437 impaired, gays and lesbians have long been Moreno, City of Cleburne, and Romer­ the subject of discrimination. Lawrence, 539 federalism-must be considered. U.S. at 571. The COUli has in these cases undetiaken a more careful assessment of the Federalism. In assailing DOMA, the justifications than the light scrutiny offered plaintiffs and especially the Commonwealth by conventional rational basis review. rely directly on limitations attributed to the Spending Clause of the Constitution and the As for burden, the combined effect of Tenth Amendment; the Justice Department, DOMA's restrictions on federal benefits will along with the Legal Group, rejects those not prevent same-sex marriage where claims. In our view, neither the Tenth permitted under state law; but it will Amendment nor the Spending Clause penalize those couples by limiting tax and invalidates DOMA; but Supreme COUli social security benefits to opposite-sex precedent relating to federalism-based couples in their own and all other states. For challenges to federal laws reinforce the need those married same-sex couples of which for closer than usual scrutiny of DOMA's one partner is in federal service, the other justifications and diminish somewhat the cannot take advantage of medical care and deference ordinarily accorded. other benefits available to opposite-sex partners in Massachusetts and everywhere It is true that DOMA intrudes extensively else in the country. into a realm that has from the start of the nation been primarily confided to state These burdens are comparable to those the regulation-domestic relations and the Court found substantial in Moreno, City of definition and incidents of lawful Cleburne, and Romer. Moreno, like this marriage-which is a leading instance of the case, involved meaningful economic states' exercise of their broad police-power benefits; City of Cleburne involved the authority over morality and culture. As the opportunity to secure housing; Romer, the Supreme Court observed long ago, chance to secure equal protection of the laws on the same terms as other groups. Loss of [t]he whole subject of the domestic survivor's social security, spouse-based relations of husband and wife, parent medical care and tax benefits are major and child, belongs to the laws of the detriments on any reckoning; provision for States and not to the laws of the retirement and medical care are, in practice, United States. the main components of the social safety net for vast numbers of Americans. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, Accordingly, we conclude that the extreme 593-94 (1890)); see also Loving v. Virginia, deference accorded to ordinary economic 388 U.S. 1,7 (1967)(marriage). legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Consonantly, Congress has never purported Court; and without insisting on to lay down a general code defining "compelling" or "impoliant" justifications or marriage or purporting to bind the states to "narrow tailoring," the Court would such a regime. Rather, in individual scrutinize with care the purported bases for situations-such as the anti-fraud criteria in the legislation. Before providing such immigration law, 8 U.S.C. § scrutiny, a separate element absent in 1 186a(b )(1 )(A)(i)-Congress has provided

438 its own definitions limited to the particular merely limits the use of federal funds to program or personnel involved. But no prescribed purposes. precedent exists for DOMA's sweeping general "federal" definition of marriage for However, the denial of federal benefits to all federal statutes and programs. same-sex couples lawfully married does burden the choice of states like Nevertheless, Congress surely has an Massachusetts to regulate the rules and interest in who counts as married. The incidents of marriage; notably, the statutes and programs that section 3 governs Commonwealth stands both to assume new are federal regimes such as social security, administrative burdens and to lose funding the Internal Revenue Code and medical for Medicaid or veterans' cemeteries solely insurance for federal workers; and their on account of its same-sex marriage laws. benefit structure requires deciding who is These consequences do not violate the Tenth married to whom. That Congress has Amendment or Spending Clause, but traditionally looked to state law to determine Congress' effort to put a thumb on the scales the answer does not mean that the Tenth and influence a state's decision as to how to Amendment or Spending Clause require it to shape its own marriage laws does bear on do so. how the justifications are assessed.

Supreme Court interpretations of the Tenth In United States v. Morrison, 529 U.S. 598 Amendment have varied over the years but (2000), and United States v. Lopez, 514 U.S. those in force today have struck down 549 (1995), the Supreme Court scrutinized statutes only where Congress sought to with special care federal statutes intruding commandeer state governments or otherwise on matters customarily within state control. directly dictate the internal operations of The lack of adequate and persuasive state government. Printz v. United States, findings led the Court in both cases to 521 U.S. 898, 935 (1997); New York v. invalidate the statutes under the Commerce United States, 505 U.S. 144 (1992). Clause even though nothing more than Whatever its spin-off effects, section 3 rational basis review is normally afforded in governs only federal programs and funding, such cases. and does not share these two vices of commandeering or direct command. The Supreme Comi has made somewhat similar statements about the need for Neither does DOMA run afoul of the scrutiny when examining federal statutes "germaneness" requirement that conditions intruding on regulation of state election on federal funds must be related to federal processes. Nw. A1lstin Mun. Uti!. Dist. No. purposes. South Dakota v. Dole, 483 U.S. One v. Holder, 557 U.S. 193 (2009); cf City 203, 207-08 (1987). The requirement is not of Boerne v. Flores, 521 U.S. 507, 534 implicated where, as here, Congress merely ( 1997) (calling RFRA a "considerable defines the telms of the federal benefit. In congressional intrusion into the States' Dole, the Supreme COUli upheld a condition traditional prerogatives and general by which federal funds for highway authority to regulate for the health and construction depended on a state's adoption welfare of their citizens"). of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA True, these federalism cases examined the

439 reach of federal power under the Commerce traditional notions of morality; (3) Clause and other sources of constitutional protecting state sovereignty and authority not invoked here; but a statute that democratic self-governance; and (4) violates equal protection is likewise beyond preserving scarce government the power of Congress. See Moreno, 413 resources. U.S. at 541, (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of H.R.Rep. No. 104-664, at 12 (1996), 1996 traditional state regulation, a closer u.S.C.C.A.N. 2905, 2916. examination of the justifications that would prevent DOMA from violating equal The penultimate reason listed above was not protection (and thus from exceeding federal directed to section 3-indeed, is antithetical authority) is uniquely reinforced by to it-but was concerned solely with section federalism concerns. 2, which reserved a state's power not to recognize same-sex marriages performed in DOMA's Rationales. Despite its ramifying other states. Thus, we begin with the others, application throughout the U.S. Code, only reserving for separate consideration the one day of hearings was held on DOMA, claim strongly pressed by the Gill plaintiffs Defense of Marriage Act: Hearing on H.R. that DOMA should be condemned because 3396 Before the Subcomm. on the its unacknowledged but alleged central Constitution of the H. Comm. on the motive was hostility to homosexuality. Judiciary, 104th Congo (1996) ("Hearing"), and none of the testimony concerned First, starting with the most concrete of the DOMA's effects on the numerous federal cited reasons-"preserving scarce programs at issue. Some of the odder government resources"-it is said that consequences of DOMA testify to the speed DOMA will save money for the federal with which it was adopted. government by limiting tax savings and avoiding social security and other payments The statute, only a few paragraphs in length, to spouses. This may well be true, or at least is devoid of the express prefatory findings might have been thought true; more detailed commonly made in major federal laws. E.g., recent analysis indicates that DOMA is more 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 likely on a net basis to cost the government U.S.C. § 1400; 21 U.S.C. § 801; 29 U.S.C. § money. 151; id. § 1001; 42 U.S.c. § 7401. Accordingly, in discerning and assessing But, where the distinction is drawn against a Congress' basis for DOMA our main resort historically disadvantaged group and has no is the House Committee report and, in lesser other basis, Supreme COUli precedent marks measure, to variations of its themes this as a reason undermining rather than advanced in the briefs before us. The bolstering the distinction. Plyler V. Doe, 457 committee report stated: U.S. 202,227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal [T]he Committee briefly discusses protection analysis, is that such a group has four of the governmental interests historically been less able to protect itself advanced by this legislation: (l) through the political process. Plyler, 457 defending and nmiuring the U.S. at 218 n. 14; United States V. Carolene institution of traditional, Prods. Co., 304 U.S. 144, 152 n. 4 (l938). heterosexual marriage; (2) defending

440 A second rationale of a pragmatic character, H.R.Rep. No. 104-664, at 15-16 (emphasis advanced by the Legal Group's brief and added); see a/so, e.g., 142 Congo Rec. several others, is to support child-rearing in 16,972 (1996) (statement of Rep. Coburn) the context of stable marriage. The evidence (homosexuality "morally wrong"). as to child rearing by same-sex couples is the subject of controversy, but we need not For generations, moral disapproval has been enter the debate. Whether or not children taken as an adequate basis for legislation, raised by opposite-sex marriages are on although usually in choices made by state average better served, DOMA cannot legislators to whom general police power is preclude same-sex couples in Massachusetts entrusted. But, speaking directly of same­ from adopting children or prevent a woman sex preferences, Lawrence ruled that moral patiner from giving birth to a child to be disapproval alone cannot justify legislation raised by both partners. discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be Although the House Repoli is filled with avoided in legislation, but Lawrence and encomia to heterosexual marriage, DOMA Romer have undercut this basis. Cj Palmore does not increase benefits to opposite-sex V. Sidoti, 466 U.S. 429,433 (1984). couples-whose marriages may in any event be childless, unstable or both-or explain Finally, it has been suggested by the Legal how denying benefits to same-sex couples Group's brief that, faced with a prospective will reinforce heterosexual marriage. change in state marriage laws, Congress was Certainly, the denial will not affect the entitled to "freeze" the situation and reflect. gender choices of those seeking marriage. But the statute was not framed as a This is not merely a matter of poor fit of temporary time-out; and it has no expiration remedy to perceived problem, Lee Optical, date, such as one that Congress included in 348 U.S. at 487-88; City of Cleb1lrne, 473 the Voting Rights Act. See Nw. A1lstin, 129 U.S. at 446-50, but a lack of any S.Ct. at 251 0 (describing original expiration demonstrated connection between DOMA's date and later extensions); City of Boerne, treatment of same-sex couples and its 521 U.S. at 533. The House Report's own asserted goal of strengthening the bonds and arguments-moral, prudential and fiscal­ benefits to society of heterosexual marriage. make clear that DOMA was not framed as a temporary measure. A third reason, moral disapproval of homosexuality, lS one of DOMA's stated Congress did emphasize a related concern, justifications: based on the Hawaii Supreme Court's decision in Baehr, that state judges would Civil laws that permit only impose same-sex marriage on unwilling heterosexual marriage reflect and states. H.R.Rep. No. 104-664, at 5-6, 12, honor a collective moral judgment 16-17. But almost all states have readily about human sexuality. This amended constitutions, as well as elected judgment entails both moral judges, and can protect themselves against disapproval of homosex1lality, and a what their citizens may regard as moral conviction that heterosexuality overreaching. The fear that Hawaii could better comports with traditional impose same-sex marriage on sister states (especially Judeo-Christian) through the Full Faith and Credit Clause, id. morality.

441 at 7-9, relates solely to section 2 of DOMA, The opponents of section 3 point to selected which is not before us. comments from a few individual legislators; but the motives of a small group cannot taint We conclude, without resort to suspect a statute supported by large majorities in classifications or any impairment of Baker, both Houses and signed by President that the rationales offered do not provide Clinton. Traditions are the glue that holds adequate suppOli for section 3 of DOMA. society together, and many of our own Several of the reasons given do not match traditions rest largely on belief and the statute and several others are diminished familiarity-not on benefits firmly provable by specific holdings in Supreme Comi in court. The desire to retain them is strong decisions more or less directly on point. If and can be honestly held. we are right in thinking that disparate impact on minority interests and federalism For 150 years, this desire to maintain concerns both require somewhat more in this tradition would alone have been justification case than almost automatic deference to enough for almost any statute. This judicial Congress' will, this statute fails that test. deference has a distinguished lineage, including such figures as Justice Holmes, Invalidating a federal statute is an the second Justice Harlan, and Judges unwelcome responsibility for federal judges; Learned Hand and Henry Friendly. But the elected Congress speaks for the entire Supreme Court decisions in the last fifty nation, its judgment and good faith being years call for closer scrutiny of government entitled to utmost respect. Gregg v. Georgia, action touching upon minority group 428 U.S. 153, 175 (1976) (plurality interests and of federal action in areas of opinion). But a lower federal court such as traditional state concern. ours must follow its best understanding of governing precedent, knowing that in large To conclude, many Americans believe that matters the Supreme Court will correct mis­ marriage is the union of a man and a readings (and even if it approves the result woman, and most Americans live in states will formulate its own explanation). where that is the law today. One viliue of federalism is that it permits this diversity of In reaching our judgment, we do not rely governance based on local choice, but this upon the charge that DOMA's hidden but applies as well to the states that have chosen dominant purpose was hostility to to legalize same-sex marriage. Under current homosexuality. The many legislators who Supreme Court authority, Congress' denial supported DOMA acted from a variety of of federal benefits to same-sex couples motives, one central and expressed aim lawfully married in Massachusetts has not being to preserve the heritage of marriage as been adequately supported by any traditionally defined over centuries of permissible federal interest. Western civilization. See H.R.Rep. No. 104- 664, at 12, 16. Preserving this institution is Hara's Health Benefits Claim. A distinct, if not the same as "mere moral disapproval of much narrower, issue is raised by Dean an excluded group," Lawrence, 539 U.S. at Hara, one of the Gill plaintiffs. Although the 585 (O'Connor, J., concurring), and that is district court ordered the relief Hara sought singularly so in this case given the range of for Social Security lump-sum death benefits, bipartisan support for the statute. the district comi found that relief on his

442 second claim for health coverage required a (Oct. 15, 2010 order staying proceedings). further determination on a precondition that Thus, now-as at the time the district court is the subject of a proceeding earlier brought issued its judgment-a Board determination by Hara and now pending in the Federal is in force that Hara lacks annuitant status. Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed.Cir. docketed Mar. 17, OPM has separately denied Hara's claim for 2009). FEHBP health enrollment because of the Congressman's failure to elect "self and Hara was married under Massachusetts law family" coverage. Although the district court to a now-deceased Congressman, and Hara found DOMA unconstitutional, it refused to has sought to be enrolled as a surviving resolve Hara's health coverage claim now spouse for health benefits under the because it still depends on Hara establishing Congressman's Federal Employees' Health eligibility for annuitant status, which is at Benefit Plan ("FEHBP"). For this, (1) Hara issue in his pending Federal Circuit appeal. would have to be an eligible "annuitant" Whether or not Hara lacked standing, the under the annuity statute, and (2) the district court showed prudence in deferring Congressman had to have enrolled in the on this issue to the Federal Circuit. health benefit plan for "self and family," which he had not done. 5 U.S.C. § 8341; 5 Hara says in substance that the Federal C.F.R. §§ 890.303(c), 890.302(a)(1). Circuit has to recognize his annuitant status because the Board has waived or forfeited Acting on an application by Hara for a any objection based on the failure to elect survivor annuity benefit, the Office of spousal survivor coverage; but the Personnel Management ("OPM") had Department of Justice does not concede the previously ruled that Hara was ineligible to point, which the Federal Circuit presumably receive an annuity both because he was not a will resolve. If Hara prevails there, district spouse under DOMA and because the court injunctive relief to secure his health Congressman had not elected such coverage. coverage is likely to be unnecessary, but our Such determinations as to annuities are affirmance is without prejudice to such a reviewed exclusively by the Merit Systems future request by Hara. Protection Board ("MSPB" or "Board") and then exclusively by the Federal Circuit. 5 The judgment of the district court is U.S.c. §§ 8347, 8341, 7703(b)(1); 28 affirmed for the reasons and to the extent U.S.C. 1295(a)(9). stated above. Anticipating that certiorari will be sought and that Supreme Court review of On review, the Board upheld the denial of DOMA is highly likely, the mandate is coverage solely because of DOMA, finding stayed, maintaining the district court's stay the failure to elect coverage not to bar of its injunctive judgment, pending further annuitant status. Hara sought further review order of this court. The parties will bear in the Federal Circuit, and that case has been their own costs on these appeals. stayed pending resolution of the DOMA issue in this circuit. Hara, No. 2009-3134 It is so ordered.

443 "Suit Cites States' Rights on Behalf of Gay Rights"

The New York Times July 9,2012 Adam Liptak

The day after the Supreme Court announced was no good reason to treat some married its decision upholding President Obama's couples differently from others. health care law, the next constitutional blockbuster arrived at the court. On June 29, Paul D. Clement, who had learned the day before that he had largely It is a rematch between the main lawyers in lost the health care case, was back at the the health care case, and it replays some of Supreme Court. He asked the justices to hear the same themes. But now the issue is same­ an appeal from the Boston decision and sex marrIage. uphold the marriage law.

The question, again, is whether a federal Four days later, Solicitor General Donald B. law-this time the Defense of Marriage Act, Verrilli Jr., who had successfully defended or DOMA-passes constitutional muster. the health care law, agreed that the new case The law says the federal government must warranted review. But he said the justices deny benefits to gay couples who are should strike down the marriage law. married in states that allow such unions. The law excludes same-sex spouses from The appeals court ruling in Boston was benefits like Social Security payments, largely based on equal protection principles. health insurance and burial services. But there was a dash of federalism in it, too, one reminiscent of arguments in the health "Until DOMA is repealed or invalidated," care case. explained Walter Dellinger, who was acting United States solicitor general in the Clinton Marriages have traditionally been governed administration, "no gay couple is fully by state law, Judge Michael Boudin wrote married." for a unanimous three-judge panel of the appeals court, raising federalism concerns (It is worth pausing to point out what the that warranted a close look at whether the new case is not about. It does not concern marriage law was justified. the law's other main part, the one that says states need not recogmze same-sex The trial judge, Joseph L. Tauro, had gone marriages from other states. It is also not further, saying the marriage law overstepped about the more ambitious arguments made Congress's power to attach conditions to in a suit filed in California by Theodore B. federal grants to states. For instance, Judge Olson and David Boies, which seeks to Tauro wrote, the Department of Veterans establish a constitutional right to same-sex Affairs had threatened to take back some marriage.) $19 million from Massachusetts if it allowed the burial of a veteran's same-sex spouse in The federal appeals court in Boston on May a cemetery that had been built and 31 struck down the part of the marriage law maintained with federal money. that concerns federal benefits, saying there

444 Most people did not take that part of Judge posItIOn of defending numerous lawsuits Tauro's opinion very seriously, and the challenging DOMA across the nation," he appeals court rejected it. But that was a said. "That is a role for which the Justice month before the Supreme Court limited the Department-not the House-is health care law's Medicaid expansion along institutionally designed." similar lines. The seven same-sex couples and three The important point about federalism, said surviving spouses actually challenging the Mr. Dellinger, the former Clinton law have yet to be heard from, and they will administration lawyer, is that two interests presumably urge the Supreme Court to deny that are sometimes at odds in cases about review. But there is every reason to think the same-sex marriage line up here. "Gay rights court will agree to hear the case, or a similar and states' rights are on the same side of the one from California, shortly after the case," he said. justices return from their summer break, with arguments around January and a Mr. Verrilli, for his part, finds himself in an decision by June. awkward position. It is ordinarily the job of the executive branch to defend laws enacted Both sides will be looking for suppOli in the by Congress, and the Justice Department did principles that animated the health care defend the marriage law early in the Obama decision. In his petition, Mr. Clement quoted administration. Last year, though, Attorney an observation from Justice Oliver Wendell General Eric H. Holder Jr. announced an Holmes Jr., one of Chief Justice John G. about-face, saying he and President Obama Roberts Jr.'s touchstones, that "judging the had concluded that the law was constitutionality of an act of Congress is the unconstitutional. gravest and most delicate duty that this court is called on to perform." The administration would continue to enforce the law, Mr. Holder said, but would Mr. Verrilli went his adversary one better, no longer defend it in court. actually citing the five-day-old health care decision, National Federation of After the administration's move, House Independent B1Isiness v. Sebelius, in what Republicans intervened in the case to defend was probably its first appearance in a the law. They turned to Mr. Clement, who Supreme COUli brief. In the health care case, sometimes seems to be handling every Mr. Verrilli reminded the justices, they important case on the Supreme Court appointed lawyers to argue positions that docket. neither party had embraced. In the marriage case, where both the plaintiffs and the In his Supreme Court petition, Mr. Clement Justice Department now agree that the law is wrote that the justices should hear the case unconstitutional, Mr. Verrilli said, it would because legislators were not equipped to similarly be sensible to allow Mr. Clement litigate. "The House has been forced into the to have his say.

445 "U.S. Files DOMA Challenges"

SCOTUSblog July 3, 2012 Lyle Denniston

Seeking a clear-cut Supreme Court ruling in a federal program or gets favored against Congress's power to ban federal treatment as in the tax code, that means only benefits for legally married same-sex a legally married man and woman. The other couples, the Obama Administration on provision attempts to give the states a legal Tuesday afternoon filed two cases, and right to refuse to recognize same-sex urged the Justices to allow the House GOP marriages that are performed in other states. leaders to defend the law that the Gay rights advocates also oppose that government now believes is provision, but it is not being put before the unconstitutional. One petition ... involves a Court. First Circuit Court ruling against the ban included in the Defense of Marriage Act. The constitutional challenge to its marriage The second . . . asked the Court to pull up a definition is not an attempt to establish a case now pending in the Ninth Circuit federal constitutional right for gays and Comi-a case in which a federal District lesbians to marry. In fact, the couples judge in California nullified the ban. challenging DOMA are already legally married under their own states' laws, and are Although the Administration believes, after contending that excluding them from equal changing its position last year, that DOMA's legal treatment is a form of unconstitutional Section 3 is invalid, and thus agrees with the discrimination. That was the basis for the lower court rulings, it contended that it still First Circuit Court's ruling against Section 3 has the authority to be the one to appeal in at the end of May, and by U.S. District order "to ensure that the judiciary is the final Judge Jeffrey White in San Francisco in arbiter" of the issue. The House's February. Republican leaders, who have taken over the defense of DOMA, have already filed their Judge White's decision is now under review, own petition (now docketed as 12-13), but on an expedited schedule in the Ninth the government lawyers argued that the Circuit, but by filing its petition in the legislators do not have a legal right to appeal Supreme Court at this stage, the Obama but should be allowed to take pati in the Administration sought to bypass that judicial case anyway. If the lawmakers are allowed rung in order to have a fuller review done by to do so, the new filing said, the Court need the Supreme Comi. The filing will have the not rule on whether they were legally effect of putting the Ninth Circuit's review entitled to bring their own appeal. on hold in the meantime.

DOMA is a 1996 law signed by President In urging that the Court put the Ninth Circuit Bill Clinton and passed with huge majorities case on a fast track to the Supreme Court, in the House and Senate. It has two main the new petition said that "authoritative provisions, but only one of those is at stake resolution of the question is of great in the new cases. That is the provision that importance to the United States," to the says that, whenever marriage is mentioned individual federal court employee in the

446 case, and to "tens of thousands of others applied "heightened scrutiny," as both of who are being denied the equal enjoyment those courts nullified the federal ban. The of the benefits that federal law makes Justice Department has now embraced the available to persons who are legally married "heightened scrutiny" test and concluded under state law." that the ban cannot meet that hurdle. It has said, though, that it will continue to enforce Because both cases involve decisions that the ban until its constitutionality is finally struck down a federal law, the chances are settled. very strong that the Supreme Court will accept at least one of them for review in the The new cases have not yet been assigned next Term, opening October 1. The Court docket numbers. Another same-sex marriage will not consider them during its summer case is on its way to the Court, involving the recess, but they could be ready for action by constitutionality of California's voter­ the Justices at their first private Conference, approved "Proposition 8," banning all same­ now set for September 24. sex marriages in that state. That cases thus raises a different constitutional issue than One of the key issues that will be before the DOMA, involving whether a state is free to Court is the constitutional test the Justices ban such marriages altogether. That case, as would apply to the federal ban. Although the it went through the Ninth Circuit, became Court has decided a number of major gay considerably narrower than it had been in rights cases, it has never declared a specific District Court, but the Circuit Court did standard-that is, it has not said whether a nullifY the state constitutional amendment law need only have a "rational basis," approved as a ballot measure. whether it should have to meet some level of "heightened scrutiny," or whether it should UPDATED July 4: The government have to satisfy the toughest test of all: "strict petitions on DOMA have been docketed as scrutiny." It has applied a variation of 12-15 (First Circuit case) and 12- I 6 (District rational basis, without saying that should Court-Northern California case). The House control in other cases. GOP leaders' petition filed earlier is docketed as 12-13 (First Circuit case). The In the First Circuit, a somewhat mixed responses to all three are due August 2, standard was applied, but Judge White unless extended.)

447 "Key Part of Federal Gay Marriage Law Ruled Unconstitutional"

The Los Angeles Times May31,2012 David G. Savage

Advocates of same-sex marriage won a Proposition 8 opinion for Kennedy, who is major legal victory-and greatly increased likely to be the swing vote. the odds of a U.S. Supreme Court The Boston-based judges of the U.S. 1st showdown on the subject-as an appeals Circuit Court of Appeals, two of whom are court ruled that the government could not Republican appointees, sounded a states' deny tax, Social Security and other federal rights theme in Thursday's opInIOn. benefits to gay couples who were legally Marriage is a matter of state law, they said. married in their home states. And as such, they saw no valid justification for the federal government to "penalize" The ruling struck down a major part of the legally married same-sex couples by Defense of Marriage Act, or DOMA, the denying them the same benefits available to law adopted in 1996 that denied federal all other married couples. These include benefits to same-sex couples. The Obama filing a joint tax return, obtaining family administration had urged the court to healthcare coverage for the spouse of a overturn the law, saying it violated the federal employee or receiving a survivor's constitutional rights of gay couples. benefit from Social Security.

The 3-0 decision by the federal appeals The Obama administration had reached the court in Boston sends the gay marriage issue same conclusion last year and refused to toward the Supreme Court on two tracks. defend this part of the law. House Republicans, led by SpeakerJohn A. One track directly involves whether gays Boehner of Ohio, vowed to carryon the and lesbians have a constitutional right to defense. They hired Washington lawyer Paul marry. In that case, a federal appeals court in Clement to argue in favor of limiting federal San Francisco shuck down California's recognition of marriage to a "legal umon Proposition 8, which had reversed the state between one man and one woman." Supreme Court's decision. The other track­ the current case-involves whether gay White House Press Secretary Jay Carney couples, once legally married, have a right said President Obama agreed with the to equal treatment. court's decision. The administration sent a lawyer to Boston to argue for striking down Both cases are likely to be appealed to the part of DOMA as a violation of equal Supreme Court this year. The judges in protection. Boston made it clear they had that in mind, and seemed to be tailoring their opinion for "There's no question that this [decision] is JusticeAnthony M. Kennedy. The U.S. 9th in concert with the president's views," Circuit Court of Appeals also tailored its Carney said.

448 Congress passed DOMA to prevent a gay Suzanne Goldberg, a Columbia University marriage in one state from being accorded law professor, said the court's opinion legal recognition in other states. This "helps to sound the death knell for DOMA. provision was not at issue in Thursday's The 1st Circuit explained, clearly and decision. Instead, the ruling arose from a simply, that denying same-sex couples the challenge to the federal benefits provision benefits of marriage will not support filed by seven same-sex couples who were heterosexuals' marriages." married in Massachusetts and sought equal benefits as married couples. The National Organization for Marriage sharply criticized the lUling. "It's obvious The judges steered clear of strong wording that the federal courts on both coasts are or sweeping conclusions about the legal intent on imposing their liberal, elitist views status of gays. They did, however, cite of marriage on the American people," said Kennedy's 1996 opinion that stlUck down an Brian Brown, the group's president. "They anti-gay voter initiative in Colorado. dismiss the centuries-old understanding of marriage as a critical social institution that The judges in Boston conceded their lUling exists for the benefit of couples and their was only a stepping stone. children."

"Only the Supreme Court can finally decide The Massachusetts state high court was the this unique case," Judge Michael Boudin nation's first, in 2003, to declare gays and wrote. They put their decision on hold until lesbians had a right to marry. Since then, the law's defenders could appeal. more than 100,000 same-sex couples have wed legally there and in other states where Clement pledged to do just that. "We have gay marriage was legal, according to the always been clear we expect this matter cOUli's OpInIOn. That includes Iowa, ultimately to be decided by the Supreme Connecticut, New Hampshire, New York, Court, and that has not changed," he said. Vermont and, before Proposition 8, California. Two other states, Washington Nonetheless, gay rights advocates hailed the and Maryland, have passed gay marriage lUling as another step toward full legal laws that could face voter initiatives in equality for gays and lesbians. November. The District of Columbia also permits same-sex marriage. DOMA created "a classic double standard, whereby gay people were singled out for The opinion by Boudin, an appointee of discrimination," said Mary Bonauto, a President George H.W. Bush, was joined by lawyer for Gay & Lesbian Advocates & Chief Judge Sandra Lynch, a Bill Clinton Defenders, the Boston-based group that sued appointee, and Judge Juan TorlUella, a on behalf of the seven same-sex couples. Ronald Reagan appointee. The lead plaintiff, Nancy Gill, is a postal worker who sought health benefits for her The broader right-to-marry issue is likely to spouse. Massachusetts filed a similar suit reach the high court in the California case, against the government, stressing the states' now awaiting a possible review by the full rights issue. U.S. 9th Circuit Court of Appeals.

449 A federal judge in San Francisco and a Defenders of Proposition 8 asked the full 9th three-judge panel of the 9th Circuit struck Circuit to review the panel's decision. If that down Proposition 8, the voter initiative that fails, they can appeal to the U.S. Supreme limited marriage to a man and a woman. Court. Both decisions relied on the Constitution's guarantee of equal protection of the laws.

450 "Appeals Court Hears Arguments on Gay Marriage Law"

The New York Times April 4, 2012 Abby Goodnough

A federal appeals court panel heard The Obama administration initially appealed arguments Wednesday on whether to uphold the lower court's ruling. But last year, the a lower couti's finding that a section of the Justice Depatiment announced that it would 1996 law banning federal recognition of stop defending DOMA, leaving Congress to same-sex marriage is unconstitutional. appeal Judge Tauro's ruling to the First Circuit. The House of Representatives' The case is the first challenge to the so­ Bipartisan Legal Advisory Group stepped in, called Defense of Marriage Act, or DOMA, hiring Paul D. Clement, a former United to reach a federal appeals couti. In July States solicitor general, to argue the appeal. 2010, Judge Joseph L. Tauro of the United States District Court in Boston sided with Massachusetts became the first state in the the plaintiffs in two separate cases brought country to allow same-sex marriage in 2004. by the state attorney general and a gay rights Other states have followed, and gay rights group. suppOliers are hoping that a series of legal challenges to DOMA around the country One issue under consideration is whether the will ultimately lead to a Supreme Court law wrongly denies federal benefits, like ruling on the law. Judge Tauro struck down Social Security survivors' payments and the the section of the law that defines marriage right to file taxes jointly, to married same­ as the union of a man and a woman for all sex couples, thus violating their equal federal purposes. protection rights. At the federal coutihouse here on In the case brought by Matiha Coakley, the Wednesday, the arguments focused on what Massachusetts attorney general, Judge Tauro the appropriate constitutional test for found in 2010 that DOMA compels DOMA should be: the relatively easy Massachusetts to discriminate against gay standard known as "rational basis," or a couples who are legally married under state tougher review that requires heightened law in order for the commonwealth to scrutiny. receive federal money for certain programs. Mr. Clement-who last week argued before The other case, brought by Gay and Lesbian the Supreme Court on behalf of states Advocates and Defenders, focused more challenging President Obama's health care narrowly on equal protection as applied to law-told the appeals panel that Congress federal benefits. In that case, Judge Tauro had a rational basis for defining marriage as agreed in 20 I 0 that the law violated the between a man and a woman. He said that in equal protection clause of the Constitution 1996, as Hawaii appeared to be the first state by denying benefits to one class of married moving toward recognizing same-sex couples-gay men and lesbians-but not marriage, Congress passed the law out of others. concern that it should have its own definition of marriage.

451 "Congress could rationally choose to have a like the fact that gay. people are getting uniform definition rather than have it rely married." upon state law," Mr. Clement said. Stuart F. Delery, the Justice Department's But Mary Bonauto, who argued on behalf of acting assistant attorney general for the civil Gay and Lesbian Advocates and Defenders, division, also argued before the panel, said that "the central question is what saying that the court should hold DOMA to federal interest is served in singling out only heightened scrutiny because it targets "a same-sex marriages" as invalid. group with a long and deep history of discrimination. " "We believe the Defense of Marriage Act is an irrational, arbitrary classification of gay The three judges on the panel directed most people for its own sake and not for any other of their questions at Mr. Clement and Mr. purpose," she said. Delery. But the questions were measured and did not shed much light on how the In the Coakley case, Judge Tauro had held court might rule. The judges-Juan that that federal restrictions on financing for Torruella, Michael Boudin and Sandra states that recognize same-sex marriage Lynch, the First Circuit's chief judge-were violates the 10th Amendment-the part of appointed by Presidents Ronald Reagan, the the Constitution that declares that rights not elder George Bush and Bill Clinton, explicitly granted to the federal government, respectively. or denied to the states, belong to the states. Afterward, Ms. Coakley said she could not Maura Healey, the assistant attorney general make predictions based on the judges' who argued on behalf of Ms. Coakley, told questions but added: "When you look at, to the panel that DOMA requires me, the thinness of the legal argument on the Massachusetts "to live with two distinct and other side and really the emotional and real unequal forms of marriage." She added, fact-based arguments made by the plaintiffs, "This is a burden that Congress has imposed I'm confident that Judge Tauro will be on Massachusetts simply because it doesn't upheld."

452 "Court Puts Review of DOMA Ruling on Hold"

The San Francisco Chronicle July 27,2012 Bob Egelko

A U.S. appeals court put a San Francisco same-sex couples who are legally married woman's suit seeking federal benefits for under state law. same-sex married couples on hold Friday until the Supreme Court decides whether to House Republican leaders have also asked review the 1996 law that prohibited those the Supreme Court to review DOMA in an benefits. appeal of a federal Circuit Court lUling in Boston that found the law unconstitutional. The Ninth U.S. Circuit Court of Appeals in Republicans hired attorneys to defend San Francisco canceled the hearing it had DOMA after President Obama withdrew his scheduled Sept. lain the case of Karen administration's support of the law in Golinski, a lesbian attorney with the appeals February 2011. court who had challenged the government's denial of family insurance coverage for her In Golinski's case, U.S. District Judge wife. Jeffrey White of San Francisco IUled in February that DOMA was a discriminatory The cOUli said it would wait to see whether law, rooted in anti gay bias, and served no the nation's high court takes the case out of legitimate government purpose. The its hands by granting the government has complied with the lUling by Obamaadministration's request for extending insurance coverage to Amy immediate review. Cunninghis, whom Golinski wed in 2008 before Californians banned same-sex The administration, joined by Golinski, has marriage by passing Proposition 8. asked the Supreme Court to bypass the appeals court and use the case to consider House Republicans have appealed White's the constitutionality of the Defense of ruling, arguing that withholding federal Marriage Act. benefits from same-sex couples was a rational way to save federal funds, The law, known as DOMA, bars federal encourage responsible child-rearing and family insurance coverage, joint tax filing, leave the volatile marriage issue to the immigration sponsorship and more than states. 1,000 other federal marital benefits for

453 "83-year-old Asks Supreme Court to Review Gay Marriage Ban"

Re1lters July 16,2012 Terry Baynes

An ailing 83-year-old lesbian asked the But Windsor's lawyers argue that premature Supreme Court on Monday to hear her legal review of her case by the Supreme Comt is challenge against a federal law that defines warranted since the issue is already before marriage as a union between a man and the court. Also, Windsor suffers from a heart woman, attempting to place her case on a condition that could end her life before the fast-track to the top court. case is resolved.

The suit, filed by Edith Schlain Windsor in The American Civil Libelties Union 2010, targets the Defense of Marriage Act, a originally filed the suit in New York on law passed by the U.S. Congress in 1996 behalf of Windsor, a former computer that denies federal benefits to lawfully programmer who married Thea Clara Spyer married same-sex couples. in Toronto, Canada, in 2007. The two were engaged in 1967. Windsor's petition attempts to bypass the U.S. Court of Appeals, which is slated to Spyer died in 2009 after a long battle with hear the case in September. multiple sclerosis, leaving her property to Windsor. Because the marriage was not With Windsor's filing, there are three recognized under federal law, Windsor had petitions pending before the Supreme Court to pay more than $363,000 in federal estate over the constitutionality of the Defense of taxes, according to the suit. Marriage Act, an issue the high court could take up in oral arguments as early as next Six states have legalized same-sex marriage spring, said Windsor's lawyer Roberta since DOMA went into effect, including Kaplan, of Paul, Weiss, Rifkind, Wharton & New York in 2011. But federal law and Garrison LLP. programs do not recognize those marriages because ofDOMA. "This case presents a question of exceptional national impOliance: the constitutionality of Windsor's attorneys argue that the federal a statute, the Defense of Marriage Act law violates the 14th Amendment of the (,DOMA'), that daily affects the lives of U.S. Constitution which prohibits states thousands of Americans," the petition said. from denying people equal protection under the laws. In June, a New York district court ruled in Windsor's favor, finding that a central Federal courts in New York, California and provision of the law discriminates against Massachusetts all found the law married same-sex couples. The case is now unconstitutional for different reasons, on expedited appeal before the 2nd U.S. applying varying standards of legal analysis. Circuit Court of Appeals.

454 The Republican-controlled House of the Justice Department to stop defending the Representatives, through its Bipartisan law in courts, finding it unconstitutional. Legal AdvisOlY Group (BLAG), is defending the law, which the Obama Paul Clement, a lawyer for BLAG, did not administration has largely abandoned. immediately respond to a request for President Barack Obama in 2011 instructed comment on Windsor's petition.

455 "Obama Team Won't Defend Defense of Marriage Act"

USA Today February 24,2011 Kevin Johnson and Joan Biskupic

The Obama administration will no longer stereotype-based thinking and animus the defend a law that bans federal recognition of Equal Protection clause is designed to guard same-sex marriage - a major legal reversal against." that reinvigorates a national debate over gay rights. "This is huge," said NOlihwestern University law professor Andrew The decision, outlined Wednesday by Koppelman, an expert on gays' legal rights. Attorney General Eric Holder, represents the "For the first time, the president of the administration's strongest legal advocacy for United States has taken the position that the rights of gay men and lesbians, who laws that discriminate against gays are have strongly opposed the Defense of unconstitutional. " Marriage Act (DOMA). The law defines marriage as only between a man and a White House spokesman Jay Carney said woman. Obama is "still grappling" with his personal views on gay marriage, but regards the law "Much of the legal landscape has changed in as "unfair." the 15 years since Congress passed DOMA," Holder said. "The Supreme Court The action, prompted by a court-ordered has ruled that laws criminalizing filing deadline in two pending legal homosexual conduct are unconstitutional. challenges to the law in New York and Congress has repealed the military's 'don't Connecticut, triggered a divided response. ask, don't tell' policy .... But while both the "While Americans want Washington to wisdom and the legality of DOMA will focus on creating jobs and cutting spending, continue to be the subject of extensive the president will have to explain why he litigation and public debate, this thinks now is the appropriate time to stir up administration will no longer assert its a controversial issue," said Brendan Buck, a constitutionality in court." spokesman for Republican House Speaker John Boehner. Holder said he was following President Obama's lead and laid out reasons why Gay-rights advocates lauded the move as a government action that treats gay people landmark for gays' legal rights. Edith differently than straight people is subject to Windsor, who is one of the challengers to court scrutiny. He noted his action departed the federal law, said the administration had from a practice of defending federal laws, "done the right thing." but said the legislative record that led to DOMA's passage had "numerous Windsor, who in 2007 married Thea Spyer expressions reflecting moral disapproval of in Canada, sued the government for refusing gays and lesbians and their intimate family to recognize her relationship and imposing a relationships-precisely the kind of $350,000 tax on Spyer's estate when she

456 died in 2009. Had Spyer been a man, woman," she said. Windsor argues, she would not have had to pay the tax because spouses are exempt. "I Five states and D.C. allow gay people to knew that the government would never be marry. On Wednesday, Hawaii Gov. Neil able to justify that 1 had to pay a $350,000 Abercrombie, a Democrat, signed same-sex estate tax simply because I was married to a civil unions into law.

457 "Court Strikes Down Ban on Gay Marriage in California"

The New York Times February 7, 2012 Adam Nagourney

A federal appeals court panel on Tuesday to be desirable, it requires that there be at threw out a voter-approved ban on same-sex least a legitimate reason for the passage of a marriage passed in 2008, upholding a lower law that treats different classes of people court's ruling that the ban, known as differently," Judge Stephen R. Reinhardt Proposition 8, violated the constitutional wrote in the decision. "There was no such rights of gay men and lesbians in California. reason that Proposition 8 could have been enacted." The three-judge panel issued its ruling in San Francisco, upholding a 2010 decision by "All that Proposition 8 accomplished was to Judge Vaughn R. Walker, who had been the take away from same-sex couples the right chief judge of the Federal District Comi of to be granted marriage licenses and thus the Northern District of California but has legally to use the designation 'marriage, ", since retired. The panel found that the judge wrote, adding, "Proposition 8 Proposition 8-passed by a vote of 52 serves no purpose, and has no effect, other percent to 48 percent-violated the equal than to lessen the status and human dignity protection rights of two same-sex couples of gay men and lesbians in California." who brought the suit. The proposition placed a specific prohibition in the State In his dissenting opinion, Judge N. Randy Constitution against marriage between two Smith wrote that the court was overreaching people of the same sex. in nullifying a voter initiative.

But Tuesday's 2-to-l decision was much Unlike the 2008 State Supreme Court more narrowly framed than the sweeping decision here overturning an earlier ban on ruling of Judge Walker, who asselied that same-sex marriage, this decision is not about barring same-sex couples from marrying to set off a race to the chapel by same-sex was a violation of the equal protection and couples. A stay imposed on Judge Walker's due process clauses of the Constitution. original decision will remain in place, at least for two weeks. Theodore B. Olson, one The two judges on Tuesday stated explicitly of the lawyers who challenged the ban, said that they were not deciding whether there he would seek to get the stay lifted; backers was a constitutional right for same-sex of Proposition 8 said they would oppose couples to marry, instead ruling that the that. disparate treatment of married couples and domestic partners since the passage of Both sides in the case made clear that they Proposition 8 violated the Constitution's intended to take the case before the Supreme Equal Protection Clause. Court in hopes of prompting it to settle once and for all an issue that has been fought out "Although the Constitution permits in comis, legislatures and ballot boxes since communities to enact most laws they believe at least a 1971 case in Minnesota. That said,

458 there is no guarantee the court will take it. Proponents of Proposition 8 expressed The narrow parameters of the ruling's disappointment, but said they were not reasoning-and the fact that it was written surprised, given the nature of the Ninth to apply only to California-may prompt the Circuit, which they view as liberal, and cOUli to wait for a clearer dispute before predicted the ruling would fail before the weighing in. Supreme Court. Several said the decision was narrow enough that it was more Whatever the legal nuances of the unlikely now that the Supreme Court, if it decision-and lawyers were battling about accepted the case, would use it to establish a how far-reaching it would prove to be-the constitutional right to same-sex marriage. decision reverberated throughout political circles, from the presidential campaign to "Since the beginning of this case, we've state legislatures. known that the battle to preserve traditional marriage will ultimately be won or lost not Mitt Romney denounced the decision as an here, but rather in the U.S. Supreme COUli," attack by "unelected judges" on "traditional said Andrew P. Pugno, general counsel for marriage" and predicted that the Supreme the ProtectMarriage.com coalition, which Court would decide the issue. "That was behind Proposition 8. "We will prospect underscores the vital importance of immediately appeal this misguided decision this election and the movement to preserve that disregards the will of more than seven our values," he said. million Californians who voted to restore marriage as the unique union of only a man Still, the decision by the United States Court and woman." of Appeals for the Ninth Circuit, coming at a time when Washington State seems poised Mr. Pugno said he had not decided whether to become the seventh state to legalize he would appeal to the Supreme Court or same-sex marriages, seems likely to add to ask a larger panel of the Ninth Circuit Court what members of both patiies said was a to review this decision. sense of momentum. Chad Griffin, the president of the American Foundation for Douglas NeJaime, an associate professor at Equal Rights, which challenged Proposition Loyola Law School in Los Angeles, said the 8, noted that polls in the past year had narrowness of the decision could influence shown public suppOli for same-sex marriage the Supreme Court to take a road it often steadily increasing, a significant change favored: issuing narrow and incremental from just a decade ago. decisions, not sweeping ones. "It's striking that the court-or at least the two judges­ In New Jersey, State Senator Stephen M. went out of their way to define the judgment Sweeney, a Democrat and president of the as narrowly as they could," he said. Senate, who abstained in a vote on a same­ sex marriage bill two years ago, is now Mr. Olson hailed the decision, saying it was championing one that is to come up for a a "huge day," and noted that the judges had, vote next Tuesday. "Today's court ruling in the course of their 89-page majority simply reaffirmed what we already knew: decision, systematically rebutted most of the Marriage equality is right, and its time is arguments that had been made against gay now," he said. marnage.

459 "I'm not at all surprised that the court didn't out to praise it. "With this ruling, in the eyes go further than it needed to go," he said. "If of the government, my family is finally it had, it might have been criticized for normal," he said as his mother looked on. reaching more than it should." John Schwatiz contributed reporting from The emotional repercussions were on New York, and Ian Lovett from Los display as Spencer Perry, 17, the son of one Angeles. of the couples who initiated the case, turned

460 "Gay Marriage Fight May Hinge on Supreme Court's Anthony Kennedy"

Los Angeles Times February 8, 2012 David G. Savage

The Supreme Court has nine justices, but if but the uncertainty about how Kennedy the constitutional fight over same-sex might vote may, by itself, be enough to deter marriage reaches them this year, the the high court from hearing an appeal of the decision will probably come down to just decision by the U.S. 9th Circuit Court of one: a California Republican and Reagan­ Appeals. Four justices must vote for the era conservative who has nonetheless court to consider a case, but a majority is written the comi's two leading gay rights needed to issue a ruling. opinions. \ When an appeal reaches the high court, the Justice Anthony M. Kennedy, 75, often four most conservative justices will face a holds the court's deciding vote on the major tough choice: Vote to have the court hear the issues that divide its liberals and case and run the risk that Kennedy would conservatives. More often than not, that vote side with the more liberal justices to go has swung the court to the right. But on gay beyond the 9th Circuit decision and establish rights, Kennedy has been anything but a a nationwide right to same-sex marriage. Or "culture wars" conservative. turn the case aside, leaving same-sex marriage intact in California but setting no One of his opinions lauded the intimacy national precedent. between same-sex couples and demanded "respect for their private lives," provoking The man at the center of the speculation Justice Antonin Scalia to accuse him of grew up in a Catholic family in Sacramento, having "signed on to the so-called where his father was a lawyer and lobbyist homosexual agenda." in the Legislature. Family friends included then-Gov. Earl Warren. As a Harvard law "He is a California establishment student, the young Kennedy visited the Republican with moderately libertarian Supreme Court to meet with Warren, who instincts," Stanford University law professor was then chief justice. Pamela Karlan said of Kennedy. "He travels in circles where he has met and likes lots of As a justice since 1988, Kennedy has gay people." reflected at times both styles of Republicanism: the conservatism and Based on Kennedy's past opinions, Karlan is respect for states' rights of Reagan, who confident that if the Supreme Court takes up appointed him, as well as Warren's devotion the issue of California's same-sex marriage to civil rights and fair treatment. ban, "it meansProp. 8 is going down to defeat," she said. "There is no way he will Two years ago he wrote the much-disputed take it to reinstate" the ban. 5-4 opinion in the Citizens United case that said corporations and unions had a free­ Not all court observers share her prediction, speech right to spend freely on election

461 campaigns. But also that year Kennedy ideological blocs likely to split evenly on the wrote a 5-4 opinion that struck down as question of same-sex marriage. The four cruel and unusual punishment the laws in conservatives-Chief Justice John G. Florida and elsewhere under which juvenile Roberts Jr.and Justices Scalia, Clarence offenders were sent to prison for life for Thomas and Samuel A. Alito Jr.-are likely crimes that did not involve a murder. to oppose the 9th Circuit's decision on the Sounding a bit like Warren, Kennedy said it grounds that judges should not force such a was unfair to close the prison doors forever change in state law. The four liberals­ on youths who had gone wrong. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Eight years ago he wrote the decision that Kagan-are likely to support the 9th declared unconstitutional laws in Texas and Circuit's decision as a matter of equal elsewhere that made gays subject to arrest treatment. for "deviate" sexual conduct. "The state cannot demean" same-sex couples by "Both sides will be nervous," said Michael making their intimate, private conduct into a Dorf, a Cornell University law professor crime, Kennedy said. who has clerked for Reinhardt and Kennedy. The California-only approach taken by In 1996, he wrote an opinion in a Colorado Reinhardt would allow the high court to pass case called Romer vs. Evans that formed the up the case, but he and others predict the basis for Tuesday's 9th Circuit decision justices will hear it. "This legalizes same­ striking down Proposition 8. sex marriage in the biggest state. That's a big deal in itself," Dorf said. Colorado voters had approved an initiative that stripped gays and lesbians of civil rights Chapman University law professor John protections under state and local ordinances. Eastman said conservatives had not given up Kennedy said the law could not stand on Kennedy. because it was "born of animosity" toward homosexuals and took away their hard-won "I know some people say Justice Kennedy legal rights. will ask: Should we stop the progress now? I think Justice Kennedy will ask: Do we want In Tuesday's decision, Judge Stephen to put a stake in the heart of an institution, Reinhardt of Los Angeles did not say gays marriage, that has done so much for had a right to marry as a matter of equal society?" he said. treatment. Instead, he focused on same-sex marriage in California and repeated Professor Erwin Chemerinsky, dean of UC Kennedy's view that voters could not take Irvine Law School, believes Kennedy will away the rights gays had briefly won. "Prop. play the crucial role and write a broader 8 singles out same-sex couples for unequal opinion that undercuts other state laws treatment by taking away from them alone banning same-sex marriage. "This is a court the right to marry," Reinhardt wrote, citing that wants to have the last word on major Romer vs. Evans. legal issues," he said.

Kennedy sits III the middle of two

462 "Further Prop. 8 Review Denied by Court of Appeals"

SCOTUSblog June 5, 2012 Lyle Denniston

The Ninth Circuit Court refused on Tuesday on hold, not only for 90 days, but also-if to reconsider the decision in February the Justices grant review-for all of the time striking down California's Proposition 8, the that the Supreme Court takes to decide it, voter-approved ban on same-sex marriages that could make it unnecessary for the in the state. The Court, however, put the backers of Proposition 8 to file a quick plea case on hold for at least 90 days to allow the for help from the Supreme Comi. The case proponents of the ballot measure to seek to almost celiainly could not be heard, in any appeal to the Supreme Court. The denial event, until the new Term, starting October came over the dissents of three judges, who 1, since the Justices are likely to go into called this a "momentous case" and argued summer recess later this month. If review that the divided decision of a three-judge were granted, the case probably would not panel had resulted from a "gross even be heard until weeks after the misapplication" of a key Supreme Court November elections this year. ruling on gay rights. One other judge dissented, but did not join the three in their The Ninth Circuit panel, and a three-judge objection .... panel of the First Circuit, have now issued gay marriage decisions that avoid the issue The ruling will set the stage for a major test of whether the Constitution assures gays and in the Supreme Court, although the panel lesbians of any right to civil marriage. In ruling is a narrow one that explicitly avoided both of the panel decisions, the two Circuit deciding whether gays and lesbians have a Courts relied upon findings that excluding constitutional right to get married. The two homosexuals from equal access to marriage judges who were in the majority in ruling or to the benefits of marriage was based against Proposition 8 briefly defended the upon discrimination against them because of narrowness of their decision in a concurring their sexual identities. That approach is opinion Tuesday. keyed to a series of modern Supreme Court rulings that have held that hostility to After the panel decision, the supporters of homosexuality, or moral objection to it, is the measure had asked the full Circuit Court not a valid basis for singling out gays and to reconsider the case en bane. At the lesbians for less favorable treatment in request of an unidentified judge, a vote was public policy. The Supreme Court has never taken among the 25 judges eligible to vote recognized a right to same-sex marriage. on the question, and a majority of 13 would have been required to grant such review. The First Circuit Court, unlike the Ninth The final vote thus appeared to be 21-4, Circuit, did not strike down a state law, but because the dissenting member of the panel rather ruled unconstitutional a part of a 1996 favored en bane review, but did not join the federal law, the Defense of Marriage Act, dissenting opinion by three other jUdges. that provided federal benefits for marriage only for opposite-sex couples. Because the Circuit Court's decision is now

463 Tuesday's developments in the Ninth Circuit review, but he wrote no opinion. Court illustrated just how contentious the issue of same-sex marriage remains in Circuit Judge Stephen Reinhardt, the author American society. The three dissenting of the panel decision, wrote a short judges who joined in a separate opinion concurring opinion joined by his colleague accused the majority of the court of having on the panel, Circuit Judge Michael Daly "silenced any . . . respectful conversations" Hawkins. They said they were puzzled by about the issue; they noted that President Judge O'Scannlain's "unusual reliance" on Obama, in a recent statement saying he comments by President Obama, because, supports same-sex marriage, had also urged they said, the President had made no the nation to talk about the issue in a mention of "the narrow issue that we "respectful manner." decided."

Circuit Judge Diarmuid O'Scannlain wrote They added: "We held only that under the the dissenting opinion, joined by Circuit particular circumstances relating to Judges Jay S. Bybee and Carlos Bea. Their California's Proposition 8, that measure was opinion said that the majority has now invalid. In line with the rules governing "declared that animus must have been the judicial resolution of constitutional issues, only conceivable motivation for a sovereign we did not resolve the fundamental question state to have remained committed to a that both sides asked us to: whether the definition of marriage that has existed for Constitution prohibits the states from millennia. . . . Even worse, we have banning same-sex marriage. That question ovenuled the will of seven million may be decided in the near future, but if so, California Proposition 8 voters based on a it should be in some other case, at some reading of Romer [v. Evans] that would be other time." unrecognizable to the Justices who joined it, to those who dissented from it, and to the Because the stay order was issued, no new judges from sister circuits who have since same-sex marriages may be performed in interpreted it. We should not have so California under the panel decision. Some roundly trumped California's democratic 18,000 couples were married in California, process without at least discussing this during the period between the time the state unparalleled decision as an en banc court." Supreme COUl1 had ruled that such a right existed under the state constitution and the Circuit Judge N. Randy Smith, who had vote by California voters in November 2008 dissented from the panel lUling, said to take away that right for gays and lesbians. Tuesday he would have granted en banc

464 "Gay-Marriage Foes Seek High Court Review"

The Wall Street JOllrnal July 31,2012 Jess Bravin

Opponents of same-sex marriage asked the federal court. Conservative activists behind U.S. Supreme Court Tuesday to hear their the initiative stepped in to defend case for reinstating Califomia's Proposition Proposition 8 after state officials, including 8, a voter initiative limiting marriage to Republican Gov. Amold Schwarzenegger heterosexuals that was ruled unconstitutional and his Democratic successor, Edmund G. by lower courts. (Jerry) Brown Jr., declined to do so.

The petition is the second major marriage The Ninth U.S. Circuit Court of Appeals, case to reach the justices' door this year, based in San Francisco, affirmed a district after parties on both sides asked the high court that found Proposition 8 court to settle the constitutionality of the unconstitutional. But the Ninth Circuit Defense of Marriage Act, a 1996 federal law didn't find a general right to same-sex denying benefits to same-sex spouses that marriage. Instead, its opinion focused on the lower courts also found invalid. fact that the voter initiative withdrew from a minority group a right previously recognized The court is widely expected to hear one or by the state constitution. More than 18,000 both of the cases, with arguments likely by marriage licenses were issued to same-sex early next year and a ruling before July. couples before voters rescinded their marriage rights. Although both cases involve gay marriage, each presents distinct legal issues, meaning The court based its ruling on a 1996 the justices need not recognize a broad right Supreme Court precedent by Justice to same-sex marriage even if they rule Anthony Kennedy, which said Colorado Proposition 8 and the Defense of Marriage couldn't withdraw protections for gays and Act unconstitutional. lesbians once they were granted.

In May 2008, the Califomia Supreme C0U11 In their Supreme Court filing, Proposition 8 held that the state constitution, which backers said the Ninth Circuit got it wrong. guarantees individuals liberty, privacy and Unlike the "exceptionally harsh and equal protection of the laws, required unprecedented character" of the Colorado recognition of same-sex marriage. measure, Califomia law remained friendly to Opponents quickly qualified a ballot gays and lesbians, they said, recognizing initiative to amend the state constitution to domestic partnerships nearly equivalent to limit marriage to heterosexual couples and heterosexual marriage. the measure, Proposition 8, passed in November 2008. California voters made a rational choice in deciding that the label marriage should Same-sex marriage advocates, led by the apply only to heterosexual partnerships, the bipartisan legal team of Ted Olson and petition says, because the concept evolved to David Boies, challenged Proposition 8 in channel "the unique procreative potential of

465 sexual relationships between men and Proposition 8 trial in 2010 that permitting women" into family units whose stability is gays and lesbians to marry would be reinforced by law. harmful to children.

For support, the Proposition 8 team invoked In June, however, Mr. Blankenhorn, founder President Barack Obama, who, in an of the Institute for American Values, said he interview announcing his personal support had come to accept gay marriage as more for same-sex marriage, said those on the beneficial than harmful to society. He wrote other side weren't "mean-spirited." in a New York Times op-ed that "to my deep regret, much of the opposition to gay The petition also cites an expert, David marriage seems to stem, at least in part, from Blankenhorn, who testified at the an underlying anti-gay animus."

466 "A New Test on Gay Rights"

SCOTUSblog July 10,2012 Lyle Denniston

With the Supreme Court's next Term That vote came only seven months after the already shaping up as a historic one on the state government changed policy, and began rights of gays and lesbians, Arizona officials offering health care benefits to "domestic have raised a significant new question for patiners" of state employees-a new the Justices: if a state bans gay marriage, can opportunity given equally to unmarried it then take away unwed same-sex couples' couples, whether or not they were gay. Up to access to state benefits that go only to those that time, those benefits were available only who can marry? The Ninth Circuit Court to married spouses and their children. The said no, but dissenting judges argued that the 2008 change made a "domestic partner" an ruling amounted to a ban on states acting to eligible dependent of a state worker, and protect a traditional view of marriage. That defined domestic partner generally as a complaint may add to the Supreme Court's person living in the same home with a state willingness to hear the state's new appeal employee who had been living there for at (Brewer v. Diaz, filed last week). least a year, was not married, and was at least 18 years old. The case illustrates a trend that is beginning to develop in lower cOUlis dealing with Ten months after "Proposition 120" had issues of gay marriage: they are establishing passed, the Arizona legislature passed a law new rights to legal equality for such couples, that was to go into effect on January 1 oflast without taking the constitutional step of year, wiping out coverage for all domestic creating an explicit new right for gays and paliners, gay or not. Titled "Section 0," it lesbians to marry. That was what lower said simply that "dependent" in state benefit cOUlis did in two cases that have already law meant only a spouse or an eligible child reached the Court, involving the (one under age 19 or, if a full-time student, constitutionality of the federal Defense of under age 23). The state legislature adopted Marriage Act, and in a case due to reach the Section 0, concluding that coverage of COUli soon on California's "Proposition 8" domestic patiners was costing the state ban on such marriages. It happened again in upwards of $4 million a year, and the state the Arizona case newly arrived at the Court, was faced with a serious budget crisis, with although the dissenters said that the decision a rising deficit. Section ° was one of 40 there implicates states' power to limit provisions that were adopted as cuts to the marriage rights. state budget.

Arizona is one of 39 states that ban same­ Section 0, however, has never gone into sex marriage. In November 2008, its voters effect, because a group of gay and lesbian approved "Proposition 120," declaring that state workers sued to challenge it and, in the "only a union of one man and one woman meantime, got a court order blocking its shall be valid or recognized as a marriage in enforcement. this state."

467 Their lawsuit, based on the equal legal benefits, the panel conceded, but it added: protection guarantee of the Fourteenth "When a state chooses to provide such Amendment, argued that the loss of health benefits, it may not do so in an arbitrary or care for their domestic partners, and for the discriminatory manner that adversely affects children of their domestic partners, was particular groups that may be unpopular." discriminatory. Since state workers who were not gay could keep their benefits if When the full 28-judge Circuit Court they got married, while gay workers were refused to reconsider the case en bane, the barred from marrying, the effect was to two dissenting judges argued that there was single out gays for the denial of benefits that no evidence that the Arizona legislature had they formerly had enjoyed. The loss, they passed Section 0 in order to discriminate argued, would be a significant financial and against state employees who are gay or emotional hardship. One example that lesbian, and such an intent would be federal courts cited was of a University of necessary to make the cut-off of benefits Arizona professor who had been in a unconstitutional. "It rests only on budgetary committed relationship for 22 years with her considerations," the dissenters contended. partner, who could not work because of a Further, the dissenters argued, the panel need to care for the partner's 89-year-old decision was based upon the "veiled but mother. The partner had signed up for unmistakable" conclusion that "rules family health coverage provided by the benefitting only traditional marriage serve state, needing it for herself because she has no conceivable rational purpose." The asthma and could not get private health decision thus set a precedent for striking insurance. She would lose that coverage down efforts by states "to promote under Section O. traditional marriage," the dissenting opinion asserted. A federal judge ruled that the challengers were likely to succeed when their case was Arizona's petltIOn to the Supreme Court tried, and blocked Section O. The judge raises three questions: whether Section 0 is found that, while that provision did not end unconstitutional though it was written in a coverage only for domestic partners of gays, neutral way and there is no evidence of but the partners of all state employees, it discrimination based on sexual orientation, would have a "discriminatory effect" on whether the state had justified it adequately gays because of the state's marriage ban. A as eliminating the added expense and three-judge panel of the Ninth Circuit administrative burden of covering all agreed. The state had argued that the domestic partners, and whether the fact that provision was justified by the need to save Arizona bars same-sex marriage is a valid state funds, a need to reduce the cost of basis for finding Section 0 to be biased. running the domestic partner benefit program, and a desire to promote marriage The Ninth Circuit ruling, state officials in its traditional form. The Circuit Court argued, was flawed on the merits, conflicts panel rejected all of those reasons, with rulings ofthe Supreme Court on how to concluding that none of them could survive judge discrimination under the Fomieenth constitutional challenge, even with the cOUli Amendment, conflicts with rulings of other only applying the least-demanding standard: state courts on similar issues, and ignores rational basis review. State employees and the state's valid reasons for Section 0- their families have no constitutional right to "conserving state resources and funds and

468 promoting traditional marriage." Indirectly, ways even more breathtaking" because the the petition added, picking up on the "Proposition 8" ruling did not reach the dissenting Circuit Court judges, the panel question of the constitutionality of same-sex decision has struck down Arizona's state marriage, while this decision does, at least laws and constitutional provision limiting indirectly. marriage to opposite-sex couples. The Arizona state employees who filed the Noting that the Ninth Circuit had also struck challenge have 30 days to respond to the down California's "Proposition 8" ban on new petition, unless that time is extended. same-sex marriage in that state, the Arizona The Supreme Court is not expected to act petition said the Ninth Circuit decision in upon the case during its summer recess. the domestic partners case was "in some

469 "Same-sex Partner Benefits Can't Be Cut Off"

The San Francisco Chronicle September 7,2011 Bob Egelko

A state can't selectively withdraw benefits family health coverage as their heterosexual from same-sex couples, a federal appeals co-workers." cOUli ruled Tuesday in blocking Arizona's attempt to deny health coverage to the Matthew Benson, a spokesman for Brewer, domestic partners of gay and lesbian state said the governor is considering a further employees. appeal. He said Brewer and Arizona lawmakers had "eliminated domestic partner When a state provides health care to its benefits across the board for both gay and employees, "it may not do so in an arbitrary straight couples in response to the state or discriminatory manner that adversely budget crisis." affects particular groups that may be unpopular," said the Ninth U.S. Circuit The court said, however, that the cutoff had Court of Appeals in San Francisco. a discriminatory impact because only opposite-sex couples could restore their The 3-0 ruling upheld a federal judge's benefits by getting married. The ruling injunction against a law that was signed by provides health coverage only to the Arizona Gov. Jan Brewer in 2009 and was domestic partners of gay and lesbian scheduled to take effect this year. Brewer's couples-the sole plaintiffs in the suit-an predecessor, Janet Napolitano, had impact that Benson said promotes authorized health benefits for state inequality. employees' domestic partners in April 2008 before leaving to become President Obama's The cOUli also said the plaintiffs presented a Homeland Security secretary. study showing a cutoff of benefits to same­ sex partners would achieve only minimal Tara Borelli of Lambda Legal, a lawyer for savings-no more than $1.8 million a year nine lesbian and gay state employees in for fewer than 300 pminers in a state with a Arizona, said the ruling is the first by a $7.8 billion budget, according to court federal appeals court "to recognize that documents-and the state had offered no equal pay for equal work means that lesbian rebuttal. and gay state employees should get the same

470