College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2012 Section 7: Gay Rights Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 7: Gay Rights" (2012). Supreme Court Preview. 8. https://scholarship.law.wm.edu/preview/8 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.