For the third time in recent weeks, and the fourth time this year, a federal court — this time a District Court judge in New York City — has struck down the 1996 federal law that barred legally married same-sex couples from obtaining any benefits available under federal law. U.S. District Judge Barbara S. Jones ruled on Wednesday that Congress in enacting the Defense of Marriage Act had no valid reason for interfering with states’ power to decide who may marry. Like most of the recent rulings, Judge Jones’s opinion was a narrow one that did not recognize a federal constitutional right for same-sex marriage.
This marked the first time that a federal judge was free, because of the lack of controlling precedent in the judge’s judicial region, to adopt a broad form of protection for gay rights. Some gay rights advocates, including some who have been challenging DOMA’s Section 3 benefits ban, have wanted the courts to rule that gays and lesbians are a class of people entitled to special constitutional protection, so that any law limiting their rights would have to satisfy the strictest constitutional test — that is, “strict scrutiny.” Laws that must meet that test seldom are upheld.
Judge Jones, however, declined to elevate the constitutional status of gay and lesbian rights. Instead, she used a variation of the lowest constitutional standard that a law must satisfy in order to be upheld — “rational basis” — and still found the DOMA provision to be invalid. This judge sits in the Second Circuit of federal courts, and the appeals court for that Circuit has not yet established a constitutional standard for judging laws that treat gays and lesbians less favorably.
In the test case before her, Judge Jones, in fact, had been asked to apply the “strict scrutiny” standard to DOMA’s benefits ban for legally married same-sex couples. If the judge was not willing to go that far, the attorneys who brought the case asked her to at least use the “heightened scrutiny” standard that is somewhat more rigorous than “rational basis.”
Judge Jones noted that no federal appeals court anywhere else in the country had used a standard any higher than the minimum one in a gay rights case. “Though there is no case law in the Second Circuit binding the Court to the rational basis standard in this context, the Court is not without guidance on the matter,” she said. The judge noted that the Supreme Court had said that courts had been reluctant to create new classes of people entitled to the highest form of constitutional protection.
And, she added, the Supreme Court itself has not done so when it had opportunities to do that. “Against this backdrop, this District Court is not inclined to do so now. In any event, because the court believes that the constitutional question presented here may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class.” (“Suspect class” is the legal phrase that is used, somewhat awkwardly, to designate a group that is entitled to rights that can be taken away only if such a law satisfies “strict scrutiny.” It is the classification of them for differing treatment, not their personal characteristics, that is deemed “suspect.”)
Judge Jones, though, did not apply “rational basis” in its most minimal form — that is, a law will survive if there is any conceivable reason that one can imagine would justify it. She said, as other federal courts have said in DOMA cases, that the minimal form of that standard is reserved mainly for economic or commercial laws, not for laws that are based on “a desire to harm a politically unpopular group.” Such laws, the judge said, get “more searching” review in the courts.
Applying that approach, Judge Jones went through each of the claimed reasons why Congress might have had for denying all federal marriage benefits for same-sex couples, and found that none of those passed muster.
The ruling came in the case of a New York City woman, Edith Schlain Windsor, who was legally married in 2007 to her long-time partner, Thea Spyer, in Canada, which allows same-sex marriages. Spyer died in February 2009, and left her estate to Windsor. Under DOMA, however, the deduction for such transfers of estates between married spouses was not available to Windsor, so she had to pay $363,053 in federal estate taxes.
Windsor sued for a refund, on the theory that DOMA’s denial of benefits to her as a surviving spouse was unconstitutional. Judge Jones agreed, and ordered the federal government to refund to Windsor the full amount of the marital deduction — $363,053 — with interests and costs tacked on.
Windsor’s challenge to DOMA was resisted in the case by the Republican leadership of the U.S. House of Representatives, which has taken on the role of defending DOMA in the time since the Obama Administration decided last year to no longer provide such a defense because the Administration now believes that DOMA is invalid.
Judge Jones’s ruling is subject to appeal to the Second Circuit Court, and an appeal does seem likely, since the House GOP leaders have pursued appeals after other District judges ruled against DOMA. The First Circuit Court last Thursday struck down DOMA, agreeing with a federal District judge in a Massachusetts case. The House Republicans took part in that case, and they are taking part in an appeal on the issue now pending in the Ninth Circuit. In that specific case, a federal judge in San Francisco ruled against DOMA using the “heightened scrutiny” standard, instead of rational basis. That judge is the only one on a federal court so far to do so. A second District judge in San Francisco recently struck down DOMA using the lower constitutional standard. That case, too, is likely to be appealed.
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