Since 1996, the Defense of Marriage Act (DOMA) has dictated the definition of "marriage" for all federal laws, including access to and eligibility for spousal benefits under federal programs such as Social Security or the Federal Employees Health Benefit Plan. Most employer-sponsored benefit plans that are governed by the Internal Revenue Code (the Code) or ERISA are also subject to DOMA — unless the plan sponsor has specifically amended its plans to cover non-DOMA spouses or partners (e.g., same-sex spouses or opposite-sex domestic partners). In Massachusetts v. U.S. Department of Health and Human Services, Nos. 10-2204, 10-2207 and 10-2214, 2012 U.S. App. LEXIS 10950 (1st Cir. May 31, 2012, as amended on June 7, 2012), the U.S. Court of Appeals for the First Circuit held that Section 3 of DOMA is unconstitutional, becoming the first federal appeals court to do so.
This article provides a brief overview of DOMA and the First Circuit's holding and discusses its impact for employee benefit plan sponsors. At this point, the impact is mostly academic, even for the plaintiffs in Massachusetts, since the court of appeals' holding stays the mandate pending further review at the district court level. Further, the First Circuit opinion indicates that final resolution of the constitutionality of DOMA rests with the U.S. Supreme Court.
Also discussed below are various other recent district court decisions holding that Section 3 is unconstitutional. Finally, a brief summary of state laws on same-sex marriage is provided.
Overview of DOMA
DOMA was passed and signed into law in 1996 by President Clinton. Massachusetts involves the constitutionality of only Section 3 of DOMA, which defines "marriage" as "only a legal union of one man and one woman as husband and wife." Section 2 of DOMA (absolving states from recognizing same-sex marriages from other jurisdictions) was not at issue in this case.
DOMA does not prohibit states from allowing same-sex marriage or civil unions. However, DOMA's pervasive reach across various federal laws results in adverse consequences for same-sex married couples that impair the rights granted by a state to married residents.
The Challenge to DOMA in the District Court
In 2010, the United States District Court for the District of Massachusetts decided two cases involving the constitutionality of Section 3 of DOMA. The first case involved individual plaintiffs attempting to claim benefits for their same-sex spouses and asserted that DOMA prohibited equal protection under the law. (In Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), the Massachusetts Supreme Judicial Court had validated same-sex marriage in the commonwealth.) The individual plaintiffs cited disadvantages from not being able to file joint federal tax returns or collecting Social Security survivor benefits.
The second case was brought by the Commonwealth of Massachusetts contesting Congress' power to define marriage and thereby interfere with state powers. The commonwealth brought claims that enforcing its same-sex marriage law would result in the revocation of federal funding for various commonwealth programs, including Medicaid programs and veterans' cemeteries. The arguments in this second case focused on Congress' power under the Spending Clause of the Constitution and the Tenth Amendment.
The district court ruled in both cases that Section 3 of DOMA was unconstitutional. The two cases were consolidated upon appeal to the First Circuit.
The First Circuit's Decision in Massachusetts
The course of the appellate proceedings in Massachusetts was delayed in part by the change in position by the Department of Justice (DOJ) regarding DOMA. The DOJ originally filed a brief in the court of appeals defending DOMA against constitutional claims. After the DOJ's announcement in February 2011 that it would no longer defend the constitutionality of Section 3 of DOMA, the defense of DOMA was taken up by the Bipartisan Legal Advisory Group, which retained counsel and intervened to support upholding the constitutionality of Section 3.
In Massachusetts, the First Circuit rejected the district court's ruling that Section 3 violates the Spending Clause and the Tenth Amendment and instead addressed the issues presented based on equal protection and federalism in a de novo review of the consolidated cases presented to the district court. Citing numerous Supreme Court rulings in support of their position, the court of appeals held that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest." Therefore, it concluded, Section 3 of DOMA was unconstitutional.
The court of appeals held that DOMA violates the Equal Protection Clause of the Constitution even if Congress had a rational basis for enacting it. Classifications based upon race or national origin cases are considered suspect and equal protection challenges to such classifications are analyzed under a "strict-scrutiny" standard. Gender classification cases are analyzed under a heightened or intermediate standard. Cases not involving suspect classifications are generally considered using rational-basis scrutiny. Although not conceding (as plaintiffs contended) that the same intermediate standard used for gender cases should apply, the court did indicate that in applying rational-basis scrutiny in its review of DOMA "in areas where state regulation has traditionally governed, the Court may require that the federal government's interest in intervention be shown with special clarity." As to DOMA, the First Circuit reasoned, because courts have reason to be concerned about discrimination against a minority group, the rationale for the legislation must be examined with a more careful assessment to ensure that the statute does not deny equal protection under the law to same-sex spouses. In addition, the court found that federalism concerns also reinforced the need for a closer examination of DOMA's justifications because DOMA affects what is traditionally an area regulated by the states.
The First Circuit's analysis of DOMA was based on the following conclusions:
- Sexual preference is not a protected class, but homosexuals have historically been discriminated against.
- DOMA does not prevent same-sex marriage where permitted under state law.
- DOMA does penalize same-sex couples by limiting access to benefits that are available to opposite-sex couples.
- The rationales offered by the federal government for upholding DOMA (defending the institution of marriage and traditional notions of morality, protecting state sovereignty, preserving government resources) were insufficient.
- DOMA does not explain how denying benefits to same-sex couples would reinforce heterosexual marriage.
- In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court held that moral disapproval alone cannot justify legislation discriminating against homosexuals.
- Cost concerns related to spousal benefits are outweighed when the legislation negatively impacts a historically disadvantaged group less able to protect itself through regular political channels.
Impact of Massachusetts on Employee Benefit Plans
The First Circuit stayed its decision, maintaining the district court's stay of its injunctive judgment, anticipating that the defendants will seek Supreme Court review of the decision. Accordingly, benefit plans offering coverage for same-sex spouses must still address drafting and imputed-tax issues. Benefit plans that have not addressed coverage for same-sex spouses are not compelled by federal law to make benefits available.
Cases in Other Jurisdictions
In Windsor v. U.S., 2012 U.S. Dist. LEXIS 79454 (S.D.N.Y. 2012), the U.S. District Court for the Southern District of New York ruled that Section 3 of DOMA is unconstitutional as applied to the plaintiff, who filed suit to recoup estate taxes on the assets she inherited from her same-sex spouse in a marriage recognized by New York state, but for which she was not granted the spousal deduction by the Internal Revenue Service. The court cited the First Circuit's ruling in Massachusetts and found that the plaintiff was denied equal protection of the laws.
In Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), the U.S. District Court for the Northern District of California ruled that Section 3 of DOMA is unconstitutional, as the statute discriminates against same-sex married couples. The appeal in Golinski is pending. Also in the Northern District of California, in the case of Dragovich v. U. S. Department of the Treasury, No. C 10-01564 CW, 2012 U.S. Dist. LEXIS 72745 (N.D. Cal. May 24, 2012), the court found Section 3 of DOMA to be unconstitutional. In Dragovich, the state's public-employee pension system refused to allow same-sex spouses to enroll in its federally approved long-term care insurance program. The plaintiffs in these California cases were married in 2008, when same-sex marriage was legal in California; those marriages are still valid.
In Connecticut, the case of Pedersen, et al. v. Office of Personnel Management, 3:10-CV-01750 (D.C. Connecticut, Nov. 9, 2010) seeks to overturn Section 3 of DOMA on the basis that the plaintiffs, all in legal same-sex marriages in their states of residence (Connecticut, Vermont, New Hampshire) are denied legal protections afforded to similarly-situated residents in opposite-sex marriages. On June 21, 2012, the Bipartisan Legal Advisory Group defending DOMA in Pedersen asked that the case be put on hold, pending their request that the Supreme Court grant cert in the Massachusetts case.
The State of State Laws
As of this month, six states and the District of Columbia issue marriage licenses to same-sex couples. Those states are Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. Maryland's marriage equality law goes into effect January 1, 2013. However, the effective date may be delayed if opponents are able to force a referendum in November 2012. Delaware, Hawaii, Illinois, New Jersey and Rhode Island allow same-sex civil unions and provide state-level spousal rights to same-sex couples.
California voters adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry, in November 2008. In a ruling issues in February 2012, the Ninth Circuit Court of Appeals found that Proposition 8 was unconstitutional. The Ninth Circuit denied the defendants' request for an en banc hearing of the case in early June, 2012; proponents of Proposition 8 are expected to seek Supreme Court review. Although California has not allowed same-sex marriages to be performed since Proposition 8 was adopted, the same-sex marriages performed in the six months before Proposition 8 was passed remain valid.
California, Oregon, Nevada and Washington each have statewide laws providing nearly all state-level spousal rights to unmarried couples who are domestic partners (this includes both same- and opposite-sex domestic partnerships). (Washington passed the Marriage Equity Act (MEA), which became law on Feb. 13, 2012. Opponents of the MEA obtained sufficient signatures to require a referendum this November. Until the results of the referendum are known, Washington's 2009 "everything but marriage law" remains in force.)
Court activity at the state level continues. For example, on March 30, 2012, two cases were filed in Cook County Circuit Court (Lazaro and Matos v. Orr; Darby v. Orr) challenging the constitutionality of the Illinois law that prohibits same-sex marriage. The Illinois States Attorney (on behalf of David Orr, Cook County Clerk) and Illinois Attorney General, Lisa Madigan, have announced that they agree that the ban is unconstitutional and will therefore not defend the law. The cases were consolidated on June 21; at this date no group has yet filed a petition asking to defend the state's marriage law.
Hawaii, Maine, Wisconsin and the District of Columbia each have comprehensive laws providing some state-level (or district-level) spousal rights to unmarried couples who are domestic partners (both same- and opposite-sex couples). Twenty-five states and Puerto Rico have laws prohibiting same-sex marriage (often referred to as "mini-DOMAs"); twenty-nine states have constitutional protections for "traditional marriage". However, twenty jurisdictions recognize some level of same-sex relationship, some including same-sex marriages from other jurisdictions. These state provisions will not be directly affected by the holding in Massachusetts or the eventual Supreme Court review of the federal DOMA's constitutionality. However, proponents of same-sex marriage equality provisions predict that the number of state challenges will continue to increase regardless of the status of the federal DOMA.
Given the number of provisions under the Code and the ERISA that address spousal benefits, the future of DOMA must be carefully monitored. The impact to employee benefit plans if DOMA is found unconstitutional will be substantial for those jurisdictions allowing same-sex marriage or civil unions, or where states must recognize a legal union from another jurisdiction. In addition, states with mini-DOMA laws can expect further assaults on those statutes. Although the holding in Massachusetts represents the first appellate decision on the constitutionality of Section 3 of DOMA, the pending challenges, as well as the inevitable additional litigation, will keep the issue moving forward toward an eventual decision by the Supreme Court.
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