Court Ruling in Defense of Marriage Act Case Leaves Uncertainty for Employers

By Kathy Carlson

A federal appeals court in Massachusetts ruled Thursday that the federal Defense of Marriage Act (DOMA) is unconstitutional because it prevents same-sex married couples from receiving benefits available to heterosexual married couples. The U.S. 1st Circuit Court of Appeals also ruled that in enacting DOMA, the federal government was intruding into domestic relations law, which states have historically regulated.

The appeals court itself acknowledged that the U.S. Supreme Court will have to address the issue, and the ruling won’t take effect pending appeal. The case examined only DOMA’s definition of marriage as being between a man and a woman and not a separate provision saying states need not recognize same-sex marriages legally contracted elsewhere. Even if the ruling went into effect, it would cover only the 1st Circuit, which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

It’s unclear how the opinion would affect employers other than federal employers, even if it were taking effect immediately. The unanimous three-judge decision does place one more court on record as being sympathetic to homosexuals’ concerns about discrimination.

Interestingly, the appeals court relied in part on a 1996 U.S. Supreme Court case striking down a Colorado law that prohibited the state from adopting antidiscrimination measures to protect gay, lesbian, and bisexual persons. Justice Anthony Kennedy wrote the 6-3 majority opinion, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. The other three justices — Sandra Day O’Connor, John Paul Stevens, and David Souter – have been succeeded by Samuel Alito, Elena Kagan, and Sonia Sotomayor, respectively. Kennedy may be a key vote if the Supreme Court takes this case.

The Massachusetts case is actually three cases. Two cases involved several married same-sex couples joining with surviving same-sex spouses to challenge DOMA for preventing them from obtaining benefits such as Social Security payments available to heterosexual married couples. In the third, the state of Massachusetts sued to determine whether it would lose federal funds under DOMA if it acted inconsistently with the Act’s mandate in administering Medicaid benefits, for example.

The 1st Circuit said that even though DOMA didn’t prohibit same-sex marriages, it did penalize same-sex married couples by limiting tax, Social Security, and other benefits to heterosexual married couples. The court said Congress had to show more than simply a rational reason for passing DOMA, an easy showing to make. Because DOMA affected a group that has historically been unpopular or disadvantaged — namely, gays and lesbians — the federal government had to show more than a rational basis for the law, but not as much justification as it would if the law affected recognized protected groups such as racial minorities.

Congress gave four reasons for enacting DOMA:

1. Defending traditional heterosexual marriage
2. Defending traditional notions of morality
3. Protecting state sovereignty
4. Preserving scarce government resources.

The appeals court found that it’s legally not enough for Congress to want to defend traditions. Furthermore, the law doesn’t protect state sovereignty because in fact Congress is infringing on an area traditionally handled by states — domestic relations matters. There also was little evidence that DOMA conserved government resources. Consequently, the state couldn’t show enough of a reason to justify a law that treated an unpopular group — same-sex married couples — less favorably than heterosexual married couples.

The case is Commonwealth of Massachusetts v. U.S. Department of Health and Human Services; Hara, Gill et al. v. Office of Personnel Management et al., Case Nos. 10-2204, 10-2207, and 10-2214, U.S. Court of Appeals for the First Circuit.