The Defense of Marriage Act and Massachusetts’ Recognition of Same-Sex Marriage: A Summary of Recent Litigation

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Kerry L. Spindler, Esq., Goulston & Storrs, P.C.

In summer of 2010, Judge Tauro of the United States District Court for the District of Massachusetts, held in two cases that the distinction drawn by the Defense of Marriage Act (“DOMA”)[1] between same-sex and opposite-sex marriage is in violation of the United States Constitution. Although the District Court has stayed the decisions while on appeal to the First Circuit, the status of same-sex marriage under federal law is an issue of ongoing importance to estate planners and their same-sex clients. Brief summaries of DOMA, in relevant part, and the decisions follow.

Summary of DOMA. In 1996, Congress enacted, and President Clinton signed into law, DOMA. Section 3 of DOMA[2] defines the terms “marriage” and “spouse” for the purposes of federal law. Under this provision, “marriage” is limited to the union of one man and one woman, and “spouse” is limited to a husband or wife of the opposite sex.

Prior to DOMA, the federal government’s recognition of a marriage was determined by reference to the relevant state’s marital law.[3] DOMA’s uniform definition of marriage implicates more than 1,000 federal laws, and, as a result, a large number of federal benefits, rights and privileges where eligibility turns on marital status.[4]

Gill v. Office of Pers. Mgmt.: In Gill v. Office of Pers. Mgmt.,[5] the plaintiffs—a group of same-sex couples and surviving spouses of same sex couples, all married in Massachusetts—argued that DOMA denied them certain federal marriage-based benefits available to similarly-situated heterosexual couples in violation of the equal protection principles embodied in the Fifth Amendment’s Due Process Clause. Specifically, each plaintiff requested to be treated as married with respect to health benefits based on federal employment, social security retirement and survivor benefits, or income tax filing status. The federal government denied the requests, citing DOMA’s mandate that it recognize only heterosexual marriages. The District Court ultimately determined that DOMA “fails to pass constitutional muster even under the highly deferential rational basis test” because there is “no fairly conceivable set of facts that could ground a relationship between DOMA and a legitimate government objective.” In relying on the rational basis test the District Court bypassed the issue of whether the strict scrutiny standard, which is reserved for fundamental rights and suspect classes, was warranted.

The District Court began with an analysis of the four motivations articulated by Congress when it passed DOMA a decade and a half ago. First is that DOMA encourages responsible procreation and child-bearing. The District Court, however, cited consensus among medical, psychological and social welfare communities that children raised by gay and lesbian parents are as well-adjusted as those raised by heterosexual parents. Moreover, even if Congress believed in 1996 that children had the best chance of success if raised jointly by biological parents, a desire to encourage heterosexual couples to procreate and rear their own children does not provide a rational basis for denying same-sex marriage federal recognition. Finally, encouraging procreation generally is not a rational basis for denying recognition to same-sex marriage because the ability to procreate is not a precondition to marriage.

The government’s second motivation is that DOMA defends and nurtures the institution of traditional heterosexual marriage. However, DOMA’s denial of marriage-based benefits to same-sex spouses bears no reasonable relation to making heterosexual marriages more secure. Moreover, if Congress seeks to make heterosexual marriage appear more valuable or desirable, it achieves this only by punishing same-sex couples, and the Constitution will not abide by such “a bare congressional desire to harm a politically unpopular group”.

The government’s third and fourth motivations are that DOMA defends traditional notions of morality and preserves scarce resources. However, a governing majority’s view that a particular practice is immoral is not sufficient reason for upholding a law. Furthermore, although resource conservation can be a legitimate government interest, it alone does not justify a particular classification.

The District Court next looked to the motivations presently articulated by the government—that DOMA is a means to preserve the status quo pending resolution of a contentious debate taking place in the states over whether to sanction same-sex marriage, and that absent DOMA, the definitions of “marriage” and “spouse” under federal law would be too variable. Family law, however, is the province of the states, and the District Court found that Congress acted improperly in creating a federal definition of marriage. Moreover, the status quo at the federal level was for the federal government to continue to recognize any marriage declared valid under state law. DOMA thus does not maintain the status quo—it is a departure therefrom.

In concluding, the District Court held that the government’s rationale is “without footing”, found that there is no reason to believe that same-sex married couples are different than heterosexual married couples in any relevant way, and inferred that animus is the basis for DOMA’s distinctions. “Because animus alone cannot constitute a legitimate government interest”, there is no rational basis to support DOMA. Thus, DOMA, as applied to the plaintiffs, violates the equal protections afforded by the Due Process Clause.

Commonwealth of Mass. v. U.S. Dept. of Health & Human Servs. In the Commonwealth of Mass. v. U.S. Dept. of Health & Human Servs.,[6] Massachusetts, as the plaintiff, argued that DOMA violates the Constitution’s Spending Clause because it forces Massachusetts to discriminate against its own citizens in order to receive and retain federal program funds. It also causes Massachusetts to pay a disproportionate federal tax. Specifically, DOMA interferes with federal funding of the State Cemetery Grants Program and MassHealth, and increases Massachusetts’ Medicare Tax payments. Massachusetts also argued that DOMA violates the Constitution’s Tenth Amendment by intruding on Massachusetts’ exclusive authority in the area of family law.

As a State Cemetery Grants Program recipient, Massachusetts owns and operates two military cemeteries. Federal funds were used to construct the cemeteries and are now received to partially reimburse Massachusetts for veterans’ burials. Funding, however, is based on Massachusetts’ compliance with a federal regulation restricting the cemeteries to only veterans, their spouses, and children. DOMA precludes recognition of same-sex spouses, and thus prevents Massachusetts, contrary to its own laws, from burying a veteran’s same-sex spouse without risking a “recapture” of several million dollars of prior federal funding and foreclosing Massachusetts’ ability to receive future funds.

Massachusetts also receives annual federal funding in support of MassHealth. Although DOMA requires MassHealth to assess eligibility for same-sex spouses as if each were unmarried, the Massachusetts’ 2008 MassHealth Equality Act provides that no person recognized as a spouse under Massachusetts law will be denied benefits on account of DOMA. Massachusetts estimated that DOMA’s restrictions with respect to same-sex spouse participants have already cost the Commonwealth nearly $3 million.

In addition, the value of health care benefits provided to a same-sex spouse of a Massachusetts employee is imputed income to the employee for federal income tax purposes. Massachusetts, as an employer, pays a Medicare tax based on each employee’s taxable income. Where an employee is charged with imputed income as a result of same-sex health care benefits, Massachusetts pays a higher tax. Massachusetts estimated that DOMA’s disparate treatment of same-sex and opposite-sex spouses has cost it nearly $200,000 in additional taxes and expenses.

The District Court began with an analysis of the Spending Clause, which provides, in relevant part, that “Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States….” The federal government argued that DOMA is within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. However, among the requirements that Spending Clause legislation must satisfy is that it must not be barred by other constitutional provisions. Spending Clause power thus cannot be used to induce states to engage in activities that would themselves be unconstitutional. Whereas this court just held in Gill that DOMA is barred by the equal protection principles of the Fifth Amendment’s Due Process Clause, it also held that the Spending Clause cannot be used to save DOMA and induce states to distinguish between same-sex and opposite-sex spouses.

Lastly, the District Court turned to the Tenth Amendment issue. A federal statute violates the Tenth Amendment if it regulates the states as states,[7] concerns attributes of state sovereignty, and impairs a state’s ability to structure integral operations in areas of traditional governmental functions. The District Court found that DOMA has a substantial impact on Massachusetts’ bottom line, intrudes on its ability to define the marital status of its citizens—the archetypical area of state sovereignty—and interferes with its authority to recognize same-sex marriages and afford individuals in such marriages the same benefits, rights and privileges as afforded to individuals in opposite-sex marriages. DOMA, therefore, is in violation of the Tenth Amendment.

Conclusion. Many predict that the Gill and Commonwealth of Massachusetts decisions will spend the next several years in the appeals process and may eventually become the subject of petitions for certiorari. The District Court’s stay of these decisions notwithstanding, the dynamic legal environment and litigation around DOMA suggest that estate planners working with same-sex spouses should strive to create flexible estate plans capable of producing optimal distribution, income, gift, and estate tax results in DOMA and post-DOMA situations. To this end, distribution and tax provisions should effectuate the client’s intent to the highest degree possible, whether or not DOMA is in effect when planning and death occurs.

[1] Pub. L. No. 104-199, 110 Stat. 2419 (1996).
[2] 1 U.S.C. § 7.
[3] Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 391–93 (Mass. Dist Ct. 2010).
[4] Id. at 379.
[5] Id. at 374. 
[6] Mass. v. U.S. Dept. of Health & Human Servs., 698 F. Supp. 2d 234, 235 (Mass. Dist. Ct. 2010).
[7] The District Court acknowledges the federal government’s argument that an additional Medicare tax withholding does not offend the Tenth Amendment because this is regular of Massachusetts as an employer, rather than as a state.  The District Court dismisses this argument in determining that Massachusetts has standing to challenge DOMA’s interference in its relatios with its public employees under Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n. 17 (1986) and that the “states as states” criterion is not so broad as to preclude Massachusetts’ challenge to DOMA.