Decision by Judge Jones in Windsor v. United States, No. 10 Civ. 8435 (S.D.N.Y.) available HERE.
UPDATE at 3:45pm PT
It’s an interesting decision. The general analysis, it seems to me, is based on two underlying themes. First, DOMA does not pass the rational basis test because it does not do enough to discriminate against same-sex couples. In other words, if Congress really wanted to promote opposite-sex couples or disapprove of same-sex couples or promote the raising of children in two-parent, opposite-sex married families, it would have to take more direct action. Maybe Congress could ban interstate same-sex adoption or something. But merely rejecting state-created rights is insufficiently linked to the government’s stated purposes. Same-sex couples can still raise kids under DOMA! So how is DOMA rationally related to raising children in married mother/father families? This is a tricky/subtle move, since it (1) allows the District Court to apply the non-controversial rational basis review (as opposed to some heightened form of scrutiny) and (2) treats the government’s purported interest in promoting same-sex couples as legitimate. Moreover, it is pretty clearly a Catch-22, which the District Court makes no attempt to hide. If Congress attempted to take more a direct action rationally related to its stated interests then such an action would likely (a) be so overwhelmingly discriminatory that they would not be upheld, and/or (b) intrude on the states’ ability to regulate marriage and family issues and therefore go beyond Congress’s limited enumerated powers.
Second, the District Court seems to discount or ignore Congress’s expressive or declaratory interests. At its heart, I think Congress’s actual purpose in passing this law was to make a cultural/moral statement that the United States government does not favor same-sex marriage and disapproves of the practice to the extent any state is considering extending marriage to such couples. In this sense, DOMA is a lot like the Hyde Amendment for abortions: Sure, you can do it, but we’re not going to pay for it! Can Congress pass a law that is only rationally related to its moral disapproval of some people’s actions? The Court seems to say no. And I think that is probably right under the Supreme Court’s Equal Protection jurisprudence (though maybe there’s a different answer under the privacy/abortion cases; I dunno). Animus alone is an insufficient purpose to support a law that actually affects people. It seems that last part — an actual effect on people — is the key. I mean, even putting aside standing issues (though maybe I shouldn’t), no court is going to strike down a law creating “National Cupcake Day” as insufficiently related to a congressional interest in promoting cupcakes because it doesn’t actually do anything to purchase or subsidize cupcakes. It’s enough that Congress just wants to say it likes cupcakes, and that expressive purpose is rationally related to its law. Right?
But enough of that, here’s what the opinion actually says.
It starts with a question regarding the plaintiff’s standing. To establish standing, the plaintiff had to show (among other things) that there exists “‘a causal connection between the injury and the conduct complained of – the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.’” (quoting Lujan v. Defenders of Wildlife) (alterations in Windsor).
DOMA’s defenders – the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) – argued that the plaintiff could not satisfy the “fairly traceable” requirement because in 2009 (the relevant time for purposes of plaintiff’s claim) her home state, the State of New York, did not recognize marriages between members of the same sex. The District Court rejected this argument based on a review of state court opinions and the official positions of the Governor, the Attorney General, and the Comptroller, all of whom had endorsed the recognition of same-sex unions.
The Baker Problem
BLAG next argued that the 1972 Supreme Court case of Baker v. Nelson controlled the outcome and compelled the survival of DOMA. Baker is an interesting little case, in which the Supreme Court dismissed for “want of a substantial federal question” an appeal seeking review of a state law that denied marriage licenses to same-sex couples. Now, if the Equal Protection Clause compelled a state’s recognition of same-sex marriage, then there would have been a federal question in Baker and the Court would not have dismissed the case.
But the District Court read Baker more narrowly. Since DOMA is indeed a federal law that has “the effect of allocating federal rights and benefits” there is certainly a federal question in this case. That was enough for the District Court to distinguish Baker.
Note: Baker was back under the mandatory appellate jurisdiction, so the decision was not the usual denial of cert we have today. Basically, “want of a substantial federal question” seems to have been the equivalent of “meh, we don’t want to deal with this now, even though there might be a federal question, we’re gonna say it’s not ‘substantial.’” (At least that’s my off-the-cuff take.)
The Equal Protection Challenge (i.e., The Main Event!)
First, the District Court declined to hold that “homosexuals are a suspect class” and instead stated that “the constitutional question presented here may be disposed of under a rational basis review.” Surprisingly, at least to me, there was no Second Circuit case law on the question!
However, the District Court didn’t just blindly apply the old run-of-the-mill rational basis test. Rather, the Court discussed our newer friend, rational review with teeth. Quoting Lawrence v. Texas, the Court distinguished between rational review as applied to “economic or tax legislation” and laws that “exhibit a desire to harm a politically unpopular group, which receive a more searching form of rational basis review.”
It is unclear to me, however, whether the Court actually held that rational review with teeth was the proper standard here. Instead, the Court prefaced its analysis by saying “[r]egardless whether a more ‘searching’ form of rational basis scrutiny is required” and “as has always been required under the rational basis test, irrespective of the context.” (emphases added). So the Court applied “these established principles” while also being “mindful of the Supreme Court’s jurisprudential cues” regarding a more searching review.
Justifications for DOMA
So what were Congress’s contemporaneous justifications for DOMA – justifications that would be subject to the rational basis test? Well, the Court provides a list:
- Defending and nurturing the traditional institution of marriage
- Promoting heterosexuality (!!!)
- Encouraging responsible procreation and childrearing
- Preserving scarce government resources
- Defending traditional notions of morality
As Tony Kornheiser would say, “That’s it! That’s the list!” Well, BLAG was not happy with that list, so they wanted to add a few potential justifications (which are also considered under the rational basis test):
- Maintaining consistency in citizens’ eligibility for federal benefits
- Promoting a social understanding that marriage is related to childrearing
- Providing children with two parents of the opposite sex
To succeed, the plaintiff had the burden to “negative every conceivable basis which might support the statute.” The Court addressed the justifications in groups.
Regarding “caution” and “nurturing the traditional institution of marriage,” the Court held that DOMA does not advance those interests because it “does not affect the state laws that govern marriage.” In other words, DOMA has nothing to do with who can or cannot be married. Accordingly, “whatever the ‘social consequences’ of this legal development [of same-sex marriage] ultimately may be, DOMA has not, and cannot, forestall them.”
BLAG didn’t advance this argument, but the Court rejected it anyway (in a footnote). Because DOMA affects only married couples, the Court “finds it implausible that [the law] does anything to persuade those married persons (who are homosexuals) to abandon their current marriages in favor of heterosexual relationships.” So there’s no rational relationship.
Here is an example of the expressive purpose I discussed above. I think the Court here probably misconceives the actual goal. I’m sure Congress didn’t intend to “convert” same-sex couples. Rather, the “promotion” was more of a declarative/expressive interest. The government wanted to “promote” heterosexuality generally by making clear that it disapproved of same-sex relationships. The Court did not address whether or to what extent Congress can rationally engage in such expressive acts.
Promoting an “ideal family structure for raising children”
“The Court does not disagree that promoting family values and responsible parenting are legitimate governmental goals.” But the Court could not find any “logical relationship between DOMA and those goals.”
Remember, DOMA has no effects on opposite-sex couples! The Court therefore concluded that the law’s ability to incentivize marriage or procreation in marriage was “remote, at best.” Moreover, DOMA doesn’t say anything about “who may adopt and raise children.”
“At most, then, DOMA has an indirect effect on popular perceptions of what a family ‘is’ and should be, and no effect at all on the types of family structures in which children in this country are raised.” Accordingly, the goal of promoting an “ideal family structure” is “so far removed” from the law’s “classification, it is impossible to credit its justification.”
Uniformity of Benefits
The Court recognized that this is a legitimate federal interest. And there is a “link between the means and the end.” However, the Court deemed it “problematic” that “the means used in this instance intrude upon the states’ business of regulating domestic relations,” which “skirts important principles of federalism and therefore cannot be legitimate.”
Marriage is a matter left to the states to decide in different ways. Therefore, there has never been a federal interest in promoting uniformity. But even if “Congress had developed a newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides, DOMA is not a legitimate method for doing so.” Why? Well, DOMA “sanctions” some state laws on marriage but “rejects others.” “[S]uch a sweeping federal review in this arena does not square with our federalist system of government.”
Conserving Federal Funds
This not enough, since any random elimination of benefits would save money. “With no other rational basis to support it, Congress’s interest in economy does not suffice.”