Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 426

COURT DELETED INCORRECT/DUPLICATE ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry is in cases 12-15388 and 12-15409. Original Text: Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by National Organization for Marriage. Date of service: 06/11/2012. [8209619] [10-16696, 11-16577] (WCD)

NO. 10-16696

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN GOLINSKI,
Plaintiff-Appellee,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN
BERRY
Defendants-Appellants.
Appeal from United States District Court for the Northern District of California
Civil Case No. C 10-00257 JSW (Honorable Jeffrey S. White)
BRIEF OF AMICUS CURIAE, NATIONAL ORGANIZATION FOR
MARRIAGE, IN SUPPORT OF INTERVENOR-APPELLANT
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES
HOUSE OF REPRESENTATIVES.
William C. Duncan
MARRIAGE LAW FOUNDATION
1868 N 800 E
Lehi, UT 84043
Phone: [phone]
[e-mail]

Joshua K. Baker
NATIONAL ORGANIZATION FOR MARRIAGE
2029 K Street NW, Suite 300
Washington, DC 20006
Phone: [phone]
Fax: [phone]
[e-mail]

i

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned states
that the amicus is not a corporation that issues stock or has a parent corporation
that issues stock.
/s/William C. Duncan
William C. Duncan
Counsel for the Amicus
June 11, 2012

ii

Statement of Compliance with Rule 29(c)(5)
This brief is submitted pursuant to Rule 29(a) of the Federal Rules of
Appellate Procedure with the consent of all parties. No party’s counsel authored
the brief in whole or in part; no party or party’s counsel contributed money that
was intended to fund preparing or submitting the brief; and no person other than
the amicus curiae, its members, or its counsel, contributed money that was
intended to fund preparing or submitting the brief.

/s William C. Duncan
William C. Duncan
Counsel for Amicus Curiae
June 11, 2012

iii

Table of Contents
Table of Authorities ................................................................................................... v
Interest of the Amicus and Consent to File ................................................................ 1
ARGUMENT ............................................................................................................. 1
I.

DOMA is entirely consistent with longstanding precedent in which Congress
defines terms, including terms related to domestic relations and marriage, as
used in federal law.. ......................................................................................... 1
A. Congress has a duty to establish a definition of marriage for federal
statutes, and DOMA neither commandeers state governments nor dictates
the internal operations of state governments. .................................................. 2
B. Historical and current precedent and practice show that Congress has
always been free to define terms as used in federal statutes, even in areas
related to marriage and domestic relations. ..................................................... 4
C. The federal government’s significant involvement in defining marriage
for federal law purposes extends back to the Nineteenth Century and was
approved by the U.S. Supreme Court. ........................................................... 13
D. The efforts of the court below, and similar attempts, to distinguish this
precedent are unavailing. ............................................................................... 16
D. The analysis of the court below, if applied in other contexts, would
dramatically alter state and federal relations. ................................................17

II.

The court below ignored crucial state interests in marriage that amply justify
Congress’ decision to enact DOMA. ............................................................. 18

CONCLUSION ........................................................................................................ 23

iv

Table of Authorities
Cases
Adams v. Howerton, 673 F.2d 1036, 1040–41 (9th Cir. 1994) .................................8
Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963, 1002 (Wash. 2006) .....22
Astrue v. Capato, 566 U.S. __ (2012) ........................................................................6
Boggs v. Boggs, 520 U.S. 833, 854 (1997) .............................................................10
De Sylva v. Ballentine, 351 U.S. 570, 582 (1956) ..................................................11
Deane v. Conaway, 401 Md. 219, 932 A.2d 571, 630-631 (Md. 2007) ..................21
Garcia-Jaramillo v. INS, 604 F.2d 1236, 1238 (9th Cir. 1979) .................................8
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941, 995996 (Mass. 2003) ..................................................................................................22
Hernandez v. Robles, 7 N.Y.3d 338, 359,855 N.E.2d 1 (NY 2006) .......................21
In re Appeal of O’Rourke, 310 Minn. 373, 246 N.W.2d 461, 462 (Minn. 1976) .....8
Kleinfield v. Veruki, 173 Va. App. 183, 372 S.E.2d 407, 410 (Va. Ct. App. 1988).8
Lutwak v. United States, 344 U.S. 604, 611 (1953) ..................................................8
Mansell v. Mansell, 490 U.S. 581, 594–95 (1989) ....................................................9
Massachusetts v. Department of Health and Human Services, No. 10-2204 (1st Cir.
2012) ............................................................................................................ 3, 7, 16
McCarty v. McCarty, 453 U.S. 210, 232–33, 236 (1981) .........................................9
McCune v. Essig, 199 U.S. 382 (1905) .....................................................................8
Morrison v. Sadler, 821 N.E.2d 15, 24-25 (Indiana App. 2005) .............................22
Nihiser v. Comm’r, 95 T.C.M. (CCH) 1531 (2008) ................................................12
Perkins v. Comm’r, 95 T.C.M (CCH) 1165 (2008).................................................12
Proctor v. Comm’r, 129 T.C. 92 (2007) ..................................................................12
Reynolds v. United States, 98 U.S. 145 (1878) .......................................................15
Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984) ..........................................12
Stout v. Prussel, 691 F.2d 859, 861 (9th Cir. 1982) ................................................12
United States v. Jordan, 30 C.M.R. 424, 429–30 (1960) ...........................................9
United States v. Richardson, 4 C.M.R. 150, 158–59 (1952) .....................................9
United States v. Rohrbaugh, 2 C.M.R. 756, 758 (1952)............................................9
United States v. Sacco, 428 F.2d 264, 267–68 (9th Cir. 1970) .................................8
Wissner v. Wissner, 338 U.S. 655, 658 (1950) .......................................................10
Yiatchos v. Yiatchos, 376 U.S. 306, 309 (1964) .....................................................10
v

Statutes
10 U.S.C. §1408 .........................................................................................................9
24 Stat. 635 (1887) ...................................................................................................14
26 U.S.C. § 7703(a)(2), (b) ......................................................................................12
8 U.S.C. § 1154(a)(2)(A) (2006) ...............................................................................8
8 U.S.C. § 1255(e) .....................................................................................................8
Act of Feb. 10, 1855, 10 Stat. 604 (1855) .................................................................7
Act of Feb. 3, 1831, ch. 16, 4 Stat. 436 (1831) ........................................................11
Act of July 4, 1836, ch. 362, 5 Stat. 127, 127–28 (1836) ..........................................9
Act of June 27, 1890, ch. 634, 26 Stat. 182, 182–83 (1890) .....................................9
Act of Mar. 3, 1803, 2 Stat. 229 (1803) .....................................................................8
Homestead Act of 1862, 12 Stat. 392 (1862) ............................................................8
Land Act of 1804, 2 Stat. 283 (1804) ........................................................................8
Naturalization Act of 1802, 2 Stat. 153 (1802) .........................................................7
Other Authorities
Census Bureau Urges Same-Sex Couples to be Counted, USA TODAY, April 6,
2010.......................................................................................................................11
Census to Recognize Same-Sex Marriages in ’10 Count, N.Y. TIMES, June 21, 2009
...............................................................................................................................11
General Counsel of the U.S. Department of Commerce, “Collecting and Reporting
Census Data Relating to Same-Sex Marriages” July 30, 2009 ............................11
H.R. REP. NO. 95-595, at 364 (1977) .......................................................................12
House Report 104-664 (July 9, 1996) ......................................................................20
KENNETH R. REDDEN, FEDERAL REGULATION OF FAMILY LAW § 6.5 (1982)...........12
Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law 2007–
2008: Federalization and Nationalization Continue, 42 Fam. L.Q. 713, 713, 751
(2009) ......................................................................................................................5
Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law 2007–
2008: Federalization and Nationalization Continue, 42 FAM. L.Q. 713, 714–15
(2009) ....................................................................................................................12
Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding,
Democracy, and the Constitution 58 DRAKE L. REV. 951 (2010). .........................7
Rev. Rul. 76-255, 1976-2 C.B. 40 ...........................................................................12
vi

Richard A. Epstein, Judicial Offensive Against Defense of Marriage Act, FORBES,
July 12, 2010 at http://www.forbes.com/2010/07/12/gay-marriagemassachusetts-supreme-court-opinions-columnists-richard-a-epstein.html ........17
U.S. Census Bureau, “A Census That Reflects America’s Population” at
http://www.washingtonpost.com/wpsrv/nation/documents/same_sex_talking_points.pdf ............................................11
U.S. CENSUS BUREAU, MEASURING AMERICA: THE DECENNIAL CENSUS FROM 1790
TO 2000, at 9 (2002)...............................................................................................11
Regulations
73 Fed. Reg. 37997 (July 2, 2008) ...........................................................................12

vii

Interest of the Amicus and Consent to File

The National Organization for Marriage (NOM) is a nationwide, non-profit
organization with a mission to protect marriage and the faith communities that
sustain it. NOM was formed in response to the need for an organized opposition to
same-sex marriage in state legislatures and it serves as a national resource for
marriage-related initiatives at the state and local level, having been described by
the Washington Post as “the preeminent organization dedicated to preventing the
legalization of same-sex marriage.” Monica Hesse, “Opposing Gay Unions With
Sanity and a Smile” Washington Post, August 28, 2009, at C01. The outcome of
this litigation will not only impact NOM’s ability to pursue its mission in states
throughout the 9th Circuit but will have implications nationally. The National
Organization for Marriage is exempt from federal income tax under Internal
Revenue Code § 501(c)(4).
All parties have consented to the filing of this amicus brief.
ARGUMENT
I.
DOMA is entirely consistent with longstanding precedent in which
Congress defines terms, including terms related to domestic relations and
marriage, as used in federal law.

1

The court below found that “DOMA marks a stark departure from tradition
and a blatant disregard of the well-accepted concept of federalism in the area of
domestic relations.” Order at 39.
Whatever the origin for the court’s misunderstanding of DOMA and the
notion of federalism, this holding turns the principle of federalism on its head.
Rather than protecting against federal usurpation of powers reserved to the states,
the ruling below would allow each state to impose its own definition of marriage
on the federal government in a sort of reverse Supremacy Clause. While Congress
may adopt state classifications for purposes of federal law, it is under no
compulsion to do so.
Plaintiff offers no other example where such a reverse Tenth Amendment
analysis has been applied, forcing Congress to adopt state classifications for
purposes of federal statutes. The court below wrongly characterized DOMA as “a
radical departure from the tradition of federalism in the area of domestic relations,”
but it is the court’s suggestion that states can impose their idiosyncratic definitions
of legal terms in the interpretation of federal statutes, even when contrary to the
expressed intention of Congress, that departs from our federalist tradition.
A. Congress has a duty to establish a definition of marriage for federal
statutes, and DOMA neither commandeers state governments nor
dictates the internal operations of state governments.

2

Like every branch of government, Congress may not act outside the bounds
of its constitutionally granted powers. Thus, Congress is unable “to commandeer
state governments or otherwise directly dictate the internal operations of state
government” and must ensure “conditions on federal funds” are “related to a
federal purpose.” Massachusetts v. Department of Health and Human Services, No.
10-2204 (1st Cir. 2012), slip op. at 21 (citing Printz v. United States, 521 U.S. 898
(1997); New York v. United States, 505 U.S. 144 (1992); South Dakota v. Dole,
483 U.S. 203 (1987)) (emphasis in original).
But DOMA easily satisfies these two conditions. As a panel of the First
Circuit has recently held:
Congress surely has an interest in who counts as married. The statutes
and programs that section 3 governs are federal regimes such as social
security, the Internal Revenue Code and medical insurance for federal
workers; and their benefit structure requires deciding who is married
to whom. That Congress has traditionally looked to state law to
determine the answer does not mean that the Tenth Amendment or
Spending Clause require it to do so.
Massachusetts v. Department of Health and Human Services, slip op. at 21.
The First Circuit further explained that the impugned section of DOMA “governs
only federal programs and funding, and does not share these two vices of
commandeering or direct command.” Id.1

As discussed below, and addressed in greater detail in the brief of IntervenorAppellants, the First Circuit panel ultimately created an unprecedented and
mistaken legal rule in holding that DOMA was unconstitutional. , Yet in doing so,
1

3

In enacting DOMA, Congress has not infringed upon the powers of any state
to regulate matters of family law, even to the point of adopting a contrary
definition of marriage. Indeed, since DOMA was adopted, a handful of states have
adopted definitions of marriage that differ from the definition in DOMA.

B. Historical and current precedent and practice show that Congress
has always been free to define terms as used in federal statutes, even
in areas related to marriage and domestic relations.
Tellingly, not even the plaintiffs have suggested that Congress lacks
authority to legislate in the subject matter areas impacted by DOMA (e.g., taxation,
immigration, etc.). Instead, they have argued that when regulating in these areas,
Congress must defer to each state when the touching on matters also involving
marriage or domestic relations.
Thus, under the analysis adopted by the court below, Congress may
unquestionably legislate in the area of taxation, but must defer to each state in
determining who is permitted to file a joint return. Or Congress may regulate
immigration status, but must defer to individual state marriage laws in determining
whether to grant certain visa or citizenship applications.
Even apart from the patchwork effect in which federal statutes are applied
differently to residents of different states, and the potential conflict created in
it properly and squarely rejected the reasoning of the court below with respect to
federalism and the 10th Amendment.
4

matters involving more than one state, such a rule is patently indefensible in light
of history and legal precedent.
In this regard, the court below was simply incorrect in claiming that “the
federal government had not [prior to DOMA] attempted to craft its own federal
definition of marriage.” Order at 39. While DOMA may have been the first time in
which Congress adopted a single definition of marriage applicable to all federal
statutes, Congress has long defined marriage for purposes of federal statutes, even
when such definitions may conflict with applicable state law.
Specifically relevant here, there has never been a special carve-out that
requires Congress to defer to state law when federal statutes intersect with
domestic relations and marriage.
Professors Linda Elrod and Robert Spector have noted: “Probably one of the
most significant changes of the past fifty years [in American family law] has been
the explosion of federal laws, uniform laws, and cases interpreting them. As
families have become more mobile, the federal government has been asked to
enact laws in numerous areas that traditionally were left to the states, such as child
support, domestic violence, and division of pension plans.”2 The most recent
authority on this point was handed down by the U.S. Supreme Court just last

2

Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law 2007–
2008: Federalization and Nationalization Continue, 42 FAM. L.Q. 713, 713
(2009).
5

month, in a unanimous ruling addressing Congress’ intended definition of a
surviving child for purposes of survivor benefits under the Social Security Act.
Astrue v. Capato, 566 U.S. __ (2012), slip op. If the rule proposed by the court
below were actually the law, this would have been a very simple decision—the
Court would have had to apply state law because the question of parentage is a
domestic relations matter. The Court did ultimately apply a state law definition in
Astrue, not because it was required to do so by the Constitution, but rather because
application of state law was what Congress intended.
In affirming Congressional intent, however, the Court also noted that other
sections of the Social Security Act have different, federal, standards for
determining the meaning of “child” under the Act. Slip op, at 5-6. In fact, the
Social Security Administration’s regulations would allow a child to receive
benefits if the child is the biological offspring of the insured person and the parents
“‘went through a ceremony which would have resulted in a valid marriage between
them except for a legal impediment,’” thus implying a broader federal definition
of marriage than state law. Id. at 6 (quoting 20 CFR §404.355(a)). The Court also
noted provisions in the Act that are independent of state law such as “duration-ofrelationship limitations.” The Court said: “Time limits also qualify the statutes of
several States that accord inheritance rights to posthumously conceived children.”
Id. at 12.
6

Congressional enactments of laws relating to domestic relations and
marriage specifically have a long history and are clearly part of current practice.
What follows is not an exhaustive list but one that is ample for purposes of
illustrating that the central holding of the court below is inconsistent with past
precedents and practice.3 In particular, these examples show that (a) Congress has
adopted definitions relating to domestic relations since the earliest days of the
United States, and (b) such definitions have routinely been upheld even when
conflicting with applicable state law.
Immigration. Dating back to the Naturalization Act of 1802, federal law
provided that children of parents who have been naturalized will automatically
become citizens unless their fathers were not naturalized.4 An 1855 immigration
law allowed citizenship to women who married citizens and to children of
citizens.5 Current immigration law continues to impose a definition of marriage
which may conflict with state law. See 8 U.S.C. §1186a(b)(A)(i) cited in
Massachusetts v. Department of Health and Human Services, No. 10-2204 (1st Cir.
2012), slip op. at 20. For example, the Immigration and Naturalization Act
provides that marriages contracted for the purpose of gaining preferential

3

For a fuller account of the relevant precedent, see Lynn D. Wardle, Section Three
of the Defense of Marriage Act: Deciding, Democracy, and the Constitution 58
DRAKE L. REV. 951 (2010).
4
2 Stat. 155 (April 14, 1802).
5
10 Stat. 604 (February 10, 1855).
7

immigration status are not valid for federal law purposes,6 even though some states
may recognize immigration marriages as valid or voidable.7 To defer to state law
on marriage for immigration purposes would allow one state to circumvent the
entire federal policy.
Land Grants. In 1803, Congress provided that homestead land south of
Tennessee would be given only to heads of families or individuals over 21.8 An
1804 law protected the land interest of “an actual settler on the lands so granted,
for himself, and for his wife and family.”9 The Homestead Act of 1862 specified
grants would be limited to “any person who is the head of a family, or who has
arrived at the age of twenty-one years.”10 Applying this statute, in 1905 the
Supreme Court resolved a land grant dispute brought by a daughter against her
mother and stepfather. McCune v. Essig, 199 U.S. 382 (1905). The daughter

6

See 8 U.S.C. § 1154(a)(2)(A) (2006); 8 U.S.C. § 1255(e).
See In re Appeal of O’Rourke, 310 Minn. 373, 246 N.W.2d 461, 462 (Minn.
1976); Kleinfield v. Veruki, 173 Va. App. 183, 372 S.E.2d 407, 410 (Va. Ct. App.
1988); Lutwak v. United States, 344 U.S. 604, 611-613 (1953); id. at 620–21
(Jackson, J., dissenting); see also Adams v. Howerton, 673 F.2d 1036, 1040–41
(9th Cir. 1982) (even if same-sex marriage was valid under state law, it did not
count as a marriage for federal immigration law purposes); Garcia-Jaramillo v.
INS, 604 F.2d 1236, 1238 (9th Cir. 1979) (argument that validity of marriage
under federal law is “frivolous” because INS can make independent inquiry into
validity of marriage law for immigration purposes); United States v. Sacco, 428
F.2d 264, 267–68 (9th Cir. 1970) (ruling, inter alia, that a bigamous marriage did
not count as a marriage for federal law purposes).
8
2 Stat. 229 (March 3, 1803).
9
2 Stat. 283 (March 26, 1804).
10
12 Stat. 392 (May 20, 1862).
7

8

argued that state inheritance law should be applied to provide her an interest in the
property but the Court ruled that “the words of the [federal Homestead Act] statute
are clear,” rejecting the daughter’s claim that state law, rather than federal, should
govern the definition of head of family as used in the Homestead Act.11
Military Benefits. In 1836, Congress enacted legislation bolstering pensions
awarded to widows of Revolutionary War soldiers.12 The 1890 Dependent and
Disability Pension Act also provided for widows and other family members of
veterans.13 Federal courts interpreting military benefits and other military laws
have used federal interpretations of family, even at times where the definitions did
not accord with state law.14 The Supreme Court has noted, for instance, that the
Uniformed Services Former Spouses’ Protection Act (10 U.S.C. §1408) is “one of
those rare instances where Congress has directly and specifically legislated in the
area of domestic relations.” Mansell v. Mansell, 490 U.S. 581, 587 (1989). The
11

Id. at 389.
5 Stat. 127 (July 4, 1836).
13
26 Stat. 182 (June 27, 1890).
14
See United States v. Jordan, 30 C.M.R. 424, 429–30 (1960) (finding that the
military could limit the defendant’s right to marry abroad because of special
military concerns); United States v. Richardson, 4 C.M.R. 150, 158–59 (1952)
(holding a marriage valid for purposes of military discipline, although it would
have been invalid in the state where the marriage began); United States v.
Rohrbaugh, 2 C.M.R. 756, 758 (1952) (noting, inter alia, that common law
marriages are specifically recognized in “a variety of matters”); McCarty v.
McCarty, 453 U.S. 210, 232–33, 236 (1981), superseded by Uniformed Services
Former Spouses’ Protection Act, Pub. L. No. 97-252, 96 Stat. 718 (1982) (codified
as amended at 10 U.S.C. § 1408 (2006)) (military retirement pay governed by
federal law, not community property law)).
12

9

Court held a claim for military retirement pay was governed by the Act and not by
community property law. Id.
Federal Pension Regulations. The federal Employment Retirement and
Income Security Act (ERISA) and other federal pension laws have consistently
been held to control the marital incidents of pensions.15 For example, in 1997 the
Supreme Court held ERISA controlled the distribution of a retirement pension in
preemption of Louisiana community property law. Boggs v. Boggs, 520 U.S. 833,
853-854 (1997).
Census. In the instructions to marshals for the 1850 Census, Congress
included a definition of family: “By the term family is meant, either one person
living separately in a house, or a part of a house, and providing for him or herself,
or several persons living together in a house, or in part of a house, upon one
common means of support, and separately from others in similar circumstances. A
widow living along and separately providing for herself, or 200 individuals living
together and provided for by a common head, should each be numbered as one
family. The resident inmates of a hotel, jail, garrison, hospital, an asylum, or other

15

See e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572 at 582 & 590 (1979) (railroad
retirement assets governed by federal law, not community property law); Yiatchos
v. Yiatchos, 376 U.S. 306, 309 (1964) (United States Savings Bonds governed by
federal law, not community property law, unless fraud involved); Wissner v.
Wissner, 338 U.S. 655, 658 (1950) (National Service Life Insurance Act governs
beneficiary of policy, not community property laws).
10

similar institution, should be reckoned as one family.”16 The 2010 Census included
same-sex marriages for the first time in its count of marriages.17 In doing so, rather
than deferring to the law of the state of residence, the Census counted same-sex
couples as married if they had been validly married in any state, even though that
marriage may not be valid under the law of their home state 18
Copyright. In 1831, Congress enacted a law allowing a child or widow to
inherit a copyright.19 In 1956, the U.S. Supreme Court issued a decision, DeSylva
v. Ballentine, holding that, in the absence of a federal definition, state law
controlled the question of who counted as a child for copyright law.20 In 1978,
Congress effectively reversed this decision by enacting a definition of “child” to
include a “person’s immediate offspring, whether legitimate or not, and any

16

U.S. CENSUS BUREAU, MEASURING AMERICA: THE DECENNIAL CENSUS FROM
1790 TO 2000, at 9 (2002), available at
http://www.census.gov/prod/2002pubs/pol02marv-pt2.pdf.
17
Census to Recognize Same-Sex Marriages in ’10 Count, N.Y. TIMES, June 21,
2009, available at http://www.nytimes.com/2009/06/21/us/21census.html?_r=1;
Census Bureau Urges Same-Sex Couples to be Counted, USA TODAY, April 6,
2010, available at http://www.usatoday.com/news/nation/census/2010-04-05census-gays_N.htm.
18
See General Counsel of the U.S. Department of Commerce, “Collecting and
Reporting Census Data Relating to Same-Sex Marriages” July 30, 2009; U.S.
Census Bureau, “A Census That Reflects America’s Population” at
http://www.washingtonpost.com/wpsrv/nation/documents/same_sex_talking_points.pdf.
19
4 Stat. 436 (February 3, 1831).
20
De Sylva v. Ballentine, 351 U.S. 570, 582 (1956).
11

children legally adopted by that person” so as to ensure that – regardless of state
law – copyright law would not exclude illegitimate children.21
Bankruptcy. Bankruptcy law determines the meaning of alimony, support
and spousal maintenance using federal law rather than state law.22 This has been
recognized in multiple federal court decisions.23
Taxation. Federal tax law considers a couple that is married under state law
but legally separated as unmarried for tax purposes.24 A couple who consistently
obtains a divorce at the end of the year to obtain single status for tax filing could be
considered unmarried for state purposes but married for purposes of federal tax
law.25
Pending Legislation. Even pending acts in Congress, some of which are
intended to legislatively accomplish the plaintiffs’ objectives here, would be
invalidated under the reasoning adopted by the court below. The proposed
21

17 U.S.C. § 101.
H.R. REP. NO. 95-595, at 364 (1977), reprinted in 1978 U.S.C.C.A.N. 5963,
6320.
23
Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984) (bankruptcy courts look
to federal—not state—law to determine whether obligation is in the nature of
alimony, maintenance or support); Stout v. Prussel, 691 F.2d 859, 861 (9th Cir.
1982).
24
26 U.S.C. § 7703(a)(2), (b) (definitions of marital status).
25
Rev. Rul. 76-255, 1976-2 C.B. 40. For federal law treatment of marriage for tax
purposes, see generally Linda D. Elrod & Robert G. Spector, A Review of the Year
in Family Law 2007–2008: Federalization and Nationalization Continue, 42 FAM.
L.Q. 713, 714–15 (2009) (discussing Nihiser v. Comm’r, 19315-04 T.C.M. 2008135 (2008); Perkins v. Comm’r, T.C.M. 2008-41, 6521-06 (2008); Proctor v.
Comm’r, 129 T.C. 12 (2007); 73 Fed. Reg. 37997 (July 2, 2008)).
22

12

Domestic Partnership Benefits and Obligations Act, S.1910, would provide
government benefits to registered domestic partners (including same-sex couples
who are married) of government employees that are equivalent to those given to
spouses of employees. The proposed repeal of DOMA, S.598, would consider
same-sex marriages as valid for federal law purposes even if they are not so
recognized in the state of the couple. Both of these bills would adopt a uniform
federal definition of domestic relations that would conflict with the law of many
states. Applying the purported tradition invoked by the court below would
invalidate both pieces of legislation.
C. The federal government’s significant involvement in defining
marriage for federal law purposes extends back to the Nineteenth
Century and was approved by the U.S. Supreme Court.
In the mid-Nineteenth Century, Congress legislated heavily with respect to
marriage in relation to the government of federal territories.26 I
Between 1862 and 1894, Congress passed five separate statutes intended to
repress the development of polygamy as a recognized marriage system in the

26

From a jurisdictional perspective, it is important to note that this precedent is
relevant not because the government of federal territories is analogous to the
regulation of states. Indeed, the Congress could not impose a definition of marriage
upon the various states. Rather, the regulation of federal territories is analogous to
other areas of plenary federal regulation, including federal tax law, military
benefits, etc. In this respect, the regulation of marriage in the territories, is simply
one more example of extensive federal regulation of marriage with respect to its
definition under federal law.
13

United States: the Morrill Anti-Bigamy Act of 186227, the Poland Act of 187428,
the Edmunds Anti-Polygamy Act of 188229, the Edmunds-Tucker Act of 188730
and the Utah Enabling Act of 1894.31
The Morrill Anti-Bigamy Act, approved by Congress in 1862 and signed by
President Abraham Lincoln, criminalizes attempts at polygamy in federal
territories. The Act was described in the chapter laws as “An Act to punish and
prevent the Practice of Polygamy in the Territories of the United States and other
Places.”32 The relevant portion of the law read:
That every person having a husband or wife living, who shall marry
any other person, whether married or single, in a Territory of the
United States, or other place over which the United States have
exclusive jurisdiction, shall, except in the cases specified in the
proviso to this section, be adjudged guilty of bigamy, and, upon
conviction thereof, shall be punished by a fine not exceeding five
hundred dollars, and by imprisonment for a term not exceeding five
years: Provided, nevertheless, That this section shall not extend to any
person by reason of any former marriage whose husband or wife by
such marriage shall have been absent for five successive years without
being known to such person within that time to be living; nor to any
person by reason of any former marriage which shall have been
dissolved by the decree of a competent court; nor to any person by
reason of any former marriage which shall have been annulled or

27

12 Stat. 501 (July 1, 1862).
18 Stat. 253 (1874).
29
22 Stat. 30 (March 23, 1882).
30
24 Stat. 635 (1887).
31
28 Stat. 107 (July 16, 1894).
32
12 Stat. 501 (July 1, 1862).
28

14

pronounced void by the sentence or decree of a competent court on
the ground of the nullity of the marriage contract.
This measure regulates marriage in federal law in two ways: it criminalizes
polygamy, and it also establishes in federal law the common law standard that a
spouse who has been missing for a prescribed number of years is “judicially dead”
for the purpose of remarriage.
Like DOMA, the Congressional ban on polygamy was challenged in federal
court. The issue was eventually resolved in the U.S. Supreme Court in a landmark
decision, Reynolds v. United States.33
As to marriage, the Court said:
Marriage, while from its very nature a sacred obligation, is
nevertheless, in most civilized nations, a civil contract, and usually
regulated by law. Upon it society may be said to be built, and out of
its fruits spring social relations and social obligations and duties, with
which government is necessarily required to deal. . . . In our opinion,
the statute immediately under consideration is within the legislative
power of Congress. It is constitutional and valid as prescribing a rule
of action for all those residing in the Territories, and in places over
which the United States have exclusive control.34
D. The efforts of the court below, and similar attempts, to distinguish
this precedent are unavailing.
The court below tries to distinguish these examples by arguing that “in each
instance, the federal government accepted the state definitions of marriage and
33
34

98 U.S. 145 (1878).
Id. at 165-166.
15

merely superimposed further requirements for falling within the federal entitlement
statute.” Order at 40. This is really an attempt to avoid conceding the obvious. If
that is the court’s approach, DOMA, too, could be read as a “further requirement”
for eligibility.
It is a distinction without a difference.
If Congress says, in the context of immigration, that marriage is a
relationship not entered into in order to avoid deportation, it has defined marriage.
That its definition is stricter than an otherwise comparable state definition does not
make it any less a definition. This, of course, is precisely what DOMA does: it
provides that for all purposes of federal law, marriage means the union of a man
and a woman.As noted above, a First Circuit panel agreed with the analysis of
amicus here that federalism principles provide no barrier to enactment of DOMA.
The panel suggests an alternative theory to support its conclusion: “Supreme Court
precedent relating to federalism-based challenges to federal laws reinforce the need
for closer than usual scrutiny of DOMA's justifications and diminish somewhat the
deference ordinarily accorded.” Massachusetts v. HHS, slip op. at 20. That court
did not, because it cannot, point to any provision in the Constitution or the
decisions of the U.S. Supreme Court to justify this idea that more searching
judicial scrutiny is required when Congress enacts laws touching on areas typically
within the province of state law.
16

In fact, the First Circuit decision implicitly acknowledges that it has created
a legal rule where none has existed before when it states: “If we are right in
thinking that disparate impact on minority interests and federalism concerns both
require somewhat more in this case than almost automatic deference to Congress’
will, this statute [DOMA] fails that test.” Id. at 28. Opinions of federal judges
about what the law might be cannot substitute for binding declarations of the law
and none of the latter exist indicating a special type of scrutiny applies to laws like
DOMA in which Congress acts to define terms related to marriage and domestic
relations.
E. The analysis of the court below, if applied in other contexts, would
dramatically alter state and federal relations.
The import of accepting the “novel”35 theory of federalism used by the court
below would be to potentially unsettle every area of federal law. If the central
holding of the court below that federal law cannot define marriage or family
independent of state definitions were applied consistently, it would require the
invalidation of current immigration, tax, bankruptcy, census, copyright, and
taxation laws, inter alia, and would be contrary to Supreme Court precedent
upholding federal laws even when they contrast with state laws.

Richard A. Epstein, Judicial Offensive Against Defense of Marriage Act, FORBES,
July 12, 2010 at http://www.forbes.com/2010/07/12/gay-marriage-massachusettssupreme-court-opinions-columnists-richard-a-epstein.html.
35

17

The doctrine of preemption would be meaningless if states were free to enact
legislation contradicting statutes enacted by Congress on matters of federal law
and have these contradictory enactments enforced in preference to Congressional
legislation. Similarly, ERISA, which trumps state law in areas traditionally subject
to state regulation prior to its enactment, would be invalidated by the theory of
federalism proposed by the court below.
II.
The court below ignored crucial state interests in marriage that amply justify
Congress’ decision to enact DOMA.
Although the parties and other amici will surely address the important social
interests advanced by DOMA, here amicus merely adds that the mistake in the
court’s analysis of the public interests served by DOMA is similar to the mistake
the court made in analyzing the application of principles of federalism to the
commonsense exercise of Congress’ power to specify the meaning of terms it uses
in statutes. In both cases, the court below failed to even acknowledge relevant
precedent that would dictate against the result reached by the court. Specifically,
the court failed to address a body of persuasive precedent from other jurisdictions
that found the foremost of the interests advanced by Congress amply justifies
retaining the definition of marriage as the union of a man and a woman.
The court below purported to address the government interest “to encourage
responsible procreation and child-rearing.” Order at 26. The analysis of the court
18

addresses an entirely different and unrelated question and then recasts the
government interest to make it irrelevant to the interest actually served by DOMA.
The court below spent directed most of its analysis to the question of whether
“same-sex parents are equally capable at parenting as opposite-sex parents” or
whether “parents’ genders are irrelevant to children’s developmental outcomes.” It
also recast the interest in procreation as “a desire to encourage opposite-sex
couples to procreate and raise their children well.” Order at 26-27.
Setting aside the near absurdity of focusing on such matters as whether an
individual in a same-sex couples is “capable” of parenting or whether a parent’s
“gender” (as opposed to family structure or biological connection) contributes to
child well being, this line of inquiry is wholly inapposite. The state interest in
marriage related to procreation does not derive from a parenting contest, much less
from an examination of whether some same-sex couples might do a good job, and
some opposite-sex couples a bad job, at raising children. The state interest in
marriage, rather, stems from a much more basic set of realities widely recognized
and affirmed by American courts over the past decade. Likewise, the assertion by
the court below that Congress was interested in getting opposite-sex couples to
have children and be good parents seems facetious which may be why the court
below focused on these kinds of issues rather than the actual interests motivating
Congress in enacting DOMA.
19

In the House Report referenced by the court below, Congress referenced a
scholarly report noting “marriage is a relationship which the community socially
approves and encourages sexual intercourse and the birth of children. It is society’s
way of signaling to would-be parents that their long-term relationship is socially
important—a public concern, not simply a private affair.”36 The Report goes on to
say: “That, then, is why we have marriage laws. Were it not for the possibility of
begetting children inherent in heterosexual unions, society would have no
particular interest in encouraging citizens to come together in a committed
relationship.” Id. at 14.
Far from dismissing these interests, other courts have given them great
weight. In holding that New York’s marriage law was consistent with the state’s
constitutional guarantees, the New York Court of Appeals found,
[T]he Legislature could rationally decide that, for the welfare of
children, it is more important to promote stability, and to avoid
instability, in opposite-sex than in same-sex relationships.
Heterosexual intercourse has a natural tendency to lead to the birth of
children; homosexual intercourse does not. Despite the advances of
science, it remains true that the vast majority of children are born as a
result of a sexual relationship between a man and a woman, and the
Legislature could find that this will continue to be true. The
Legislature could also find that such relationships are all too often
casual or temporary. It could find that an important function of
36

House Report 104-664 (July 9, 1996) at http://www.gpo.gov/fdsys/pkg/CRPT104hrpt664/pdf/CRPT-104hrpt664.pdf at 13 (quoting Marriage in America: A
Report to the Nation 10 (Council on Families in America 1995) reprinted in
PROMISES TO KEEP: DECLINE AND RENEWAL OF MARRIAGE IN AMERICA 303 (David
Popenoe, et al., eds, 1996)).
20

marriage is to create more stability and permanence in the
relationships that cause children to be born. It thus could choose to
offer an inducement-in the form of marriage and its attendant benefitsto opposite-sex couples who make a solemn, long-term commitment
to each other. Hernandez v. Robles, 7 N.Y.3d 338, 359,855 N.E.2d 1
(NY 2006).
The court further said:
The Legislature could rationally believe that it is better, other things
being equal, for children to grow up with both a mother and a father.
Intuition and experience suggest that a child benefits from having
before his or her eyes, every day, living models of what both a man
and a woman are like. It is obvious that there are exceptions to this
general rule—some children who never know their fathers, or their
mothers, do far better than some who grow up with parents of both
sexes—but the Legislature could find that the general rule will usually
hold. Id. at 359-360.
The Maryland Court of Appeals similarly noted:
[S]afeguarding an environment most conducive to the stable
propagation and continuance of the human race is a legitimate
government interest. The question remains whether there exists a
sufficient link between an interest in fostering a stable environment
for procreation and the means at hand used to further that goal, i.e., an
implicit restriction on those who wish to avail themselves of Statesanctioned marriage. We conclude that there does exist a sufficient
link. . . . This “inextricable link” between marriage and procreation
reasonably could support the definition of marriage as between a man
and a woman only, because it is that relationship that is capable of
producing biological offspring of both members (advances in
reproductive technologies notwithstanding). Deane v. Conaway, 401
Md. 219, 932 A.2d 571, 630-631 (Md. 2007).

21

To take yet one more example,37 in an opinion concurring in the Washington
Supreme Court’s decision that the state’s marriage law was constitutional, Justice
J.M. Johnson said:
A society mindful of the biologically unique nature of the marital
relationship and its special capacity for procreation has ample
justification for safeguarding this institution to promote procreation
and a stable environment for raising children. Less stable homes
equate to higher welfare and other burdens on the State. Only
opposite-sex couples are capable of intentional, unassisted
procreation, unlike same-sex couples. Unlike same-sex couples, only
opposite-sex couples may experience unintentional or unplanned
procreation. State sanctioned marriage as a union of one man and one
woman encourages couples to enter into a stable relationship prior to
having children and to remain committed to one another in the
relationship for the raising of children, planned or otherwise.
Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963, 1002
(Wash. 2006) (J.M. Johnson., J. concurring).
These excerpts make abundantly clear that the procreation interest noted by
Congress is not trivial but rather deserving of greater deference than the court
below gave it.
The failure of the court below to examine directly relevant precedent in the
context of federal regulation of marriage and persuasive precedent in the context of
the public’s interests in marriage and procreation fatally compromise its decisions
that DOMA is unconstitutional.
CONCLUSION
37

See also Morrison v. Sadler, 821 N.E.2d 15, 24-25 (Indiana App. 2005);
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941, 995996 (Mass. 2003) (Justice Cordy dissent).
22

For the foregoing reasons, amicus curiae respectfully requests that this
Honorable Court uphold the constitutionality of the Defense of Marriage Act and
reverse the judgment of the district court.
Respectfully submitted,
/s William C. Duncan
William C. Duncan

23

Certificate of Compliance with Rule 32(a)
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because it contains 5,625 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionately spaced typeface using Microsoft Word 2007
in 14-point Times New Roman font.
/s William C. Duncan
William C. Duncan
Counsel for the Amicus
June 11, 2012

24

Certificate of Service
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on June 11, 2012.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s William C. Duncan
William C. Duncan
Counsel for the Amicus
June 11, 2012

25