By Kenneth Jost
Supreme Court Editor, CQ Press
The Obama administration will no longer defend the central provision of the 1996 law that prevents the federal government from providing marriage-based benefits to legally married same-sex couples.
In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.
The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in some 40 states.
Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”
Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.
The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.
The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.
The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”
The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.
Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.
In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”
Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.
The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeal, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.
Anti-Gay Laws Suspect: Government
Vermont legalizes same-sex marriage. What do you think?
What do CQ Researcher readers think about today's announcements that Vermont legalized gay marriage and that the Washington D.C. Council voted to recognize same-sex marriages performed in other states? Vote in the latest poll on the CQ Researcher blog.
In the News: Connecticut to Permit Same-Sex Marriage
Connecticut began issuing marriage licenses to gay couples after the state Supreme Court ruled on Oct. 10 that excluding same-sex couples from marriage was unconstitutional. The court said gay marriages could officially be performed starting Nov. 12. Connecticut voters recently decided against holding a convention to amend the state’s constitution, which could have offered supporters of traditional marriage a chance to ban same-sex marriage in the state. In 2005 Connecticut legalized civil unions, which offer similar rights and benefits for gay couples. Meanwhile, California voters recently approved Proposition 8, which amended the state constitution to restrict the definition of marriage to a union between a man and a woman. The vote overturned a California Supreme Court decision allowing gay marriage.
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New Report: Gay Marriage Showdowns
By Kenneth Jost, September 26, 2008
Will voters bar marriage for same-sex couples?
The California Supreme Court gave gay rights advocates a major victory in May, ruling the state’s constitution guarantees same-sex couples the same marriage rights as opposite-sex pairs. Thousands of same-sex couples from California and around the country have already taken advantage of the decision to obtain legal recognition from California for their unions. Opponents, however, have placed on the state’s Nov. 4 ballot a constitutional amendment that would deny marriage rights to same-sex couples by defining marriage as the union of one man and one woman. Similar proposals are on the ballot in Arizona and Florida. The ballot-box showdowns come as nationwide polls indicate support for some legal protection for same-sex couples, but not necessarily marriage equality. In California, one early poll showed support for the ballot measure, but more recently it has been trailing. Opposing groups expect to spend about $20 million each before the campaign ends.
* Should same-sex couples be allowed to marry?
* Should state constitutions prohibit marriage for same-sex couples?
* Should states recognize same-sex marriages from other states?
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Overview of the New Report on Gay Marriage Showdowns
Jennifer Pizer and Doreena Wong met on their first day at New York University Law School in 1984. They graduated in 1987 and moved to California together three years later.
Jenny and Doreena were still together on May 15, 2008, when the California Supreme Court issued its stunning, 4-3 decision establishing a constitutional right to marriage for same-sex couples in the state. As one of the Lambda Legal Defense and Education Fund lawyers in the case, Pizer spoke at a press conference in San Francisco after the decision was released and then flew home to Los Angeles for a rally in the heart of gay West Hollywood.
“You’re not going to do anything funny, are you?” Doreena asked Jenny in the car as they drove to the rally. Pizer feigned ignorance even as she was thinking that the event was the perfect time to pop “the question.”
So, as she finished her remarks, Pizer looked down toward her partner’s face in the crowd and said, “Now, I’d like to ask a question I’ve waited 24 years to ask: Doreena Wong, will you marry me?”
“Yes, of course,” Wong replied. Standing at the microphone, Pizer relayed the answer to the cheering crowd: “She said yes!”
Television cameras recorded the moment, but Pizer admits months later that she has yet to see the full video clip. For even as gay rights advocates are celebrating the victory – and Jenny and Doreena are planning their Oct. 5 wedding in Marin County – opponents of gay marriage are working hard to reverse the state court’s decision.
Less than three weeks after the decision, opponents won legal approval to put a state constitutional amendment on the Nov. 4 ballot that would allow marriage in California only “between a man and a woman.” If accepted by a simple majority of the state’s voters, Proposition 8 would prohibit marriage for gay and lesbian couples in California and bar recognition of same-sex marriages from other states as well.
“Marriage has always been understood as the union of one man and one woman by California citizens and by other people in the country,” says Mathew Staver, founder and chairman of Liberty Counsel, a Christian public-interest law firm, and one of the lawyers who argued against gay marriage before the California Supreme Court. “That provides the best environment for society.”
“We absolutely agree that marriage is a special word for a special institution,” Pizer responds. “We disagree that the social institution should be available only in a discriminatory manner and that it serves any social purpose to exclude gay and lesbian couples.”
The debate over the ballot measure has not deterred but in fact has encouraged gay and lesbian couples in California to get to the altar – or to city hall. By one estimate, some 5,000 same-sex couples got married in California within the first week after the court ruling became effective on June 17. The first-week spike receded, but the weddings are continuing – spurred by the widespread assumption that marriages performed before Nov. 4 will remain valid even if Proposition 8 is approved.
Hollywood celebrities have been among those tying the knot, including TV talk show host Ellen de Generes and ex-”Star Trek” actor George Takei. De Generes wed Portia de Rossi, her girlfriend of the past four years, in an intimate, picture-book ceremony at their Beverly Hills home on Aug. 16. Takei and his longtime partner Brad Altman exchanged self-written vows in a more lavish ceremony at the Japanese American National Museum in downtown Los Angeles on Sept. 14. “May equality long live and prosper,” Takei said as he left the ceremony amid a horde of photographers and well-wishers.
Most of the newlyweds, however, are non-celebrities, many of them in long-term relationships that had already been registered under a 2003 California law as domestic partnerships with nearly complete marriage-like rights and responsibilities. “There’s almost no change” over domestic partnership status, explains David Steinberg, news desk copy chief at the San Francisco Chronicle, who married his longtime partner Gregory Foley in July. Steinberg says he and Foley, a nurse at Kaiser Permanente, decided to get married anyway “because they might take it away.”
The state high court decision made California the second state, after Massachusetts, to allow marriage for same-sex couples. The Supreme Judicial Court of Massachusetts issued a 4-3 decision in November 2003, holding that the state had “no constitutionally adequate reason” for denying same-sex couples the legal benefits of marriage. The court gave the legislature 180 days to respond but later issued an advisory opinion saying that civil union status would not be an adequate substitute for marriage. When the legislature failed to act by the deadline, the high court decision took effect, and same-sex marriages began in Massachusetts on May 17, 2004.
The California Supreme Court ruled similarly but more directly that the state’s constitution guarantees a “fundamental right to marry” to “all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.” The majority opinion – written by the Republican-appointed chief justice, Ronald George – specifically rejected civil union or domestic partnership status.
The ruling invalidated a statutory initiative to define marriage as between one man and one woman approved by slightly over 61 percent of the state’s voters as Proposition 22 in March 2000. Gay marriage opponents had already begun circulating an initiative to write the “one-man, one-woman” definition of marriage into the state constitution. By June 2, they had submitted petitions with approximately 1.1 million signatures – sufficient for the secretary of state to certify the proposed constitutional amendment for the Nov. 4 ballot.
The state Supreme Court added to the urgency of the opposition by declining to stay its decision pending the Nov. 4 vote. Same-sex marriages began in California on June 17. The first marriage license in San Francisco went to two longtime lesbian activists, Del Martin and Phyllis Lyons, who had been together for more than 50 years. San Francisco Mayor Gavin Newsom officiated at the ceremony. Martin died 10 weeks later – at age 87.
Besides Massachusetts and California, eight other states and the District of Columbia permit some legal recognition for same-sex couples, including four that permit civil unions with virtually the same rights and responsibilities as marriage. On the opposite side, 26 states have constitutional amendments that prohibit marriage for same-sex couples, and another 17 have similar statutory bans. In addition, the federal Defense of Marriage Act – known as DOMA – prohibits federal recognition for same-sex marriages. The 1996 law also provides that states need not recognize same-sex marriages from other states.
Massachusetts recorded approximately 11,000 same-sex marriages in the three years after the state high court ruling, according to demographer Gary Gates, a senior research fellow at the Williams Institute, UCLA School of Law. He says an exact count is not possible in California because marriage licenses are no longer recording the parties’ sex, but a projection based on the increased number of marriages in the months after the state high court ruling indicates more than 5,000 same-sex couples married in the first week after the decision.
All told, Gates and his colleagues at the institute – which studies sexual-orientation policy and law, primarily funded by a gay philanthropist – estimate that 85,000 same-sex couples have taken advantage of recognition provisions in those states permitting that status. But a higher percentage of same-sex couples are opting to marry than are registering for civil union or domestic partnership.
Supporters of marriage equality say the growing number of same-sex couples in legally protected relationships is eroding opposition to gay marriage. “We’re seeing a growing public understanding that ending gay couples’ exclusion from marriage helps families and harms no one,” says Evan Wolfson, executive director of Freedom to Marry, self-described as a gay and non-gay partnership advocating marriage rights for same-sex couples.
Opponents disagree. They point to the gay marriage bans already enacted as the better gauge of public attitudes on the issue. “Supporters of same-sex marriage have a real uphill climb if they hope to undo what has been accomplished in the past 10 years by supporters of traditional marriage,” says Peter Sprigg, vice president for policy at the Family Research Council, a Christian organization based in Washington, D.C., promoting traditional marriage.
An initial poll in California indicated the ballot measure was ahead, but statewide surveys in August and September showed the proposition trailing by at least 14 percentage points. Two other states – Arizona and Florida – will be voting on similar constitutional amendments on Nov. 4. Arizona’s measure needs a majority vote; Florida requires a 60 percent vote for a state constitutional amendment.
In addition to those three ballot measures, Arkansans will be voting on a statutory initiative to prohibit unmarried couples – whether same-sex or opposite-sex – to adopt or take foster children. The initiative was proposed after a regulation barring adoption or placement with same-sex couples was overturned in court.
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