Posted by Eugene Volokh:
Defense Of Marriage Act Unconstitutional
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233863347
when applied to exclude same-sex married couples from federal employee
benefits. So concluded [1]Ninth Circuit Judge Stephen Reinhardt
earlier this week, in an internal order resolving a complaint brought
by a Ninth Circuit employee. [2]Chief Judge Alex Kozinski suggested
last month that DOMA might be unconstitutional in such situations, but
interpreted the federal benefits statute in a way that avoided the
need to decide whether DOMA is indeed unconstitutional. (Thanks to
Robert Iafolla and John Roemer of the [3]L.A. Daily Journal for
breaking the story.)
Judge Reinhardt concluded that applying the Defense of Marriage Act's
mandate that "marriage" under federal law shall include only
opposite-sex couples violates the Due Process Clause because it is not
"rationally related to a legitimate governmental purpose." The opinion
concluded that:
1. The denial of benefits "cannot be justified simply by a distaste
for or disapproval of same-sex marriage or a desire to deprive
same-sex spouses of benefits available to other spouses in order
to discourage them from exercising a legal right affored them by a
state," since that would constitute "a bare desire to harm a
politically unpopular group."
2. The federal government interest in "defending and nurturing the
institution of traditional, heterosexual marriage," mentioned in
the House report on DOMA, "is largely irrelevant to the rational
basis analysis here because the same-sex couple here is already
married," and the government's denial of benefits to same-sex
spouses wouldn't "encourage[ gay people] to enter into marriages
with members of the opposite sex."
3. As to the interest in "defending traditional notions of morality"
also mentioned in that House report, "if the denial is designed to
'defend' traditional notions of morality by discouraging same-sex
marriage, it does so only by punishing same-sex couples who
exercise their rights under state law, and thus exhibits the 'bare
desire to harm' same-sex couples that is prohibited under City of
Cleburne and Romer." Moreover, "denying married same-sex spouses
health coverage is far too attenuated a means of achieving the
objective of 'defending traditional notions of morality," plus
"Romer and Lawrence v. Texas strongly suggest that the government
cannot justify discrimination against gay people or same-sex
couples based on 'traditional notions of morality' alone."
4. Finally, the third interest mentioned in the House report, "the
government's interest in preserving scarce government interests"
"does not provide a rational basis for that policy if the policy
is, as a cost-saving measure, drastically underinclusive, let
alone founded upon a prohibited or arbitrary ground."
Some of these rationales might be restrictable to employee benefits
alone. But the logic of this argument, I think, would ultimately
invalidate the entire Defense of Marriage Act, and for that matter
would read the U.S. Constitution to secure a right to same-sex
marriage (at least so long as the government recognizes opposite-sex
marriages).
I like the idea of giving same-sex spouses the same health benefits as
opposite-sex spouses; and I support same-sex marriage as a policy
matter. But it seems to me that these claims that the law lacks a
"rational basis" are not sound. The principle behind the Defense of
Marriage Act -- and nearly all states' recognition of opposite-sex
marriage but not same-sex marriages -- is that (1) heterosexual
relationships are better for society than homosexual ones, and that
the (2) government's preferring same-sex marriages in a wide range of
contexts will tend to reinforce that norm among the public. I'm
skeptical of both these claims, but I don't think they can be said to
be irrational, or animated by a "bare desire to harm": Many critics of
same-sex marriages genuinely believe (even if in my view ultimately
wrongly) that specially fostering heterosexual relationships is indeed
materially better for society than treating heterosexual and
homosexual relationships equally -- their desire is to try to help
society (even if this in the process means excluding some groups for
benefits), not "bare[ly]" "to harm" people.
And this is especially so since sexual behavior is indeed alterable
for quite a few people. Whatever one might think about the
alterability of sexual orientation, there is strong evidence that many
(perhaps about half) non-purely-heterosexual men and most
non-purely-heterosexual women are actually [4]bisexual, and may thus
be not unlikely to respond to social norms in their choices of
partners. As I've suggested before, I don't think we should try to
pressure this choice using government benefits; but that doesn't make
the contrary view irrational, it seems to me. Moreover, while I am
told that there is a considerable amount of intriguing evidence about
sexual orientation being innate, I'm pretty skeptical that the matter
is conclusively resolved at this stage of the investigation. I thus
don't think it's irrational for Congress to believe that, at least as
to some people, broad social norms may affect their felt orientations
and not just their choices within a felt bisexual orientation.
Of course, any particular application of the law (e.g., to employee
benefits) might not have that much of a norm-reinforcing effect. But
that sort of particularization isn't the proper approach under the
rational basis test, I think, nor should it be: The point of this law,
as of many other laws, is to have a significant effect through its
aggregate incentive and norm-setting function.
Finally, I should acknowledge that the famously mysterious decision in
Romer v. Evans, and the less famously mysterious but still, in my
view, not well-reasoned decision in City of Cleburne v. Cleburne
Living Center might be read as supporting the conclusion that DOMA is
unconstitutional here. This is so precisely because they are so vague,
and because the "rational basis with bite" review that they are said
to create is so unclear on what that "bite" is supposed to mean, and
what actual legal rule judges are supposed to use to implement this
"bite." But I'm pretty sure that those decisions don't mandate the
results (again, precisely because they are so vague).
In any case, let me stress again: I think wise employers, federal,
state, and private, should care about keeping their employees happy
and productive -- including by helping the employees' provide for
their families -- and not about the employees' choice of spouses or
life partners. I also support the recognition of same-sex marriages.
But while I think the views contrary to mine are mistaken, I don't
think they're irrational, either in the lay sense or in the
constitutional sense.
References
1.
http://www.ce9.uscourts.gov/articlefiles/Feb.2_2009_Final_FPD_EDR_ORDER.pdf
2. http://www.ce9.uscourts.gov/articlefiles/Jan13_2009_USCA9_EDR_Order.pdf
3. http://www.dailyjournal.com/
4. http://volokh.com/posts/1077833939.shtml
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