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Definition of marriage in DOMA falls under constitutional equal protection guarantees

By Pamela Wolf, J.D.

In a greatly anticipated and deeply divided opinion, the Supreme Court ruled yesterday that lawfully married same-sex couples are entitled to the equal protection of the laws pursuant to the Fifth and Fourteenth Amendments to the Constitution and, thus, the Defense of Marriage Act (DOMA) must fall (United States v Windsor, June 26, 2013, Kennedy, A). “The federal statute is invalid, for no legitimate purpose overcomes [its] purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” wrote the Court.

Additionally, the High Court dismissed the companion same-sex marriage case, Hollingsworth v Perry, holding that the proponents of California’s “Proposition 8,” which amended the state constitution to define marriage as a union between a man and a woman, lacked standing to appeal a federal district court’s ruling that the ballot initiative was unconstitutional.

State vs. federal regulation of marriage. Presently New York, along with 11 other states and the District of Columbia have “decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.” Against that background of lawful same-sex marriage in some states, the Court marked the design, purpose, and effect of DOMA as the beginning point in its consideration of the federal statute’s constitutionality. Although the Court addressed the constitutionality of limited federal laws regulating the meaning of marriage with the goal of furthering federal policy, “DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations,” wrote the Court. “And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.”

Tracing the history and tradition of state power and authority over marriage in order to assess the validity of DOMA’s intervention, the Court also noted the federal government’s historical deference to state law policy decisions with respect to domestic relations. The state’s power in defining the marital relationship was of primary relevance in this case apart from federalism principles. In contrast, DOMA, due to its reach and extent, departs from this history and tradition of reliance on state law to define marriage. There was no doubt that New York, in first recognizing and then permitting same-sex marriage, was engaging in a proper exercise of its sovereign authority under federalism principles

“DOMA seeks to injure the very class New York seeks to protect,” and in so doing “violates basic due process and equal protection principles applicable to the Federal Government,” wrote the Court. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law,” which raised “a most serious question under the Constitution’s Fifth Amendment.”

Class of persons singled out. The class to which DOMA’s restrictions and restraints are directed are those persons who are joined in same-sex marriages made lawful by the state. The statute singles out a class of persons deemed by a state to be entitled to recognition and protection to enhance their own liberty. It also imposes a disability on the class by refusing to acknowledge a status that the state finds to be dignified and proper. “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others,” wrote the Court. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

Impact. Because the Court limited its opinion and holding to only those lawful marriages in states that recognize them, a number of questions remain for employers. Absent DOMA’s limitation of marriage to heterosexual couples, employers that sponsor employee benefits plans must now review how their plans provide spousal benefits as well as address the tax issues associated with such benefits. COBRA, ERISA, and FMLA definitions of spouse will be impacted by the Court’s ruling.

According to Human Rights Campaign, within hours after the decision, lawmakers in both the House and the Senate reintroduced the Respect for Marriage Act (RMA). HRC said the legislation “would fully remove DOMA from the books and establish a clear rule for the federal government that all married same-sex couples – regardless of what state they currently live in – have access to equal rights, benefits, and protections under federal law.”

Said HRC President Chad Griffin, “The Respect for Marriage Act will finally expunge DOMA’s discrimination from our nation’s laws and provide certainty to every married same-sex couple that their federal recognition will follow them wherever they may live or travel. We have an obligation to ensure every same-sex couple – whether they live in Arkansas or New York, Kansas or California, can share in today’s emotional and deserved victory.”