Windsor v. The United States Of America
Filing
38
FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. Document filed by New York State. (Attachments: # 1 Memorandum of Law in Support, # 2 Proposed Brief)(Heller, Simon) Modified on 7/26/2011 (ldi).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
:
EDITH SCHLAIN WINDSOR, in her
:
capacity as Executor of the Estate of THEA :
CLARA SPYER,
:
:
Plaintiff,
:
:
v.
:
:
THE UNITED STATES OF AMERICA
:
:
Defendant. :
-------------------------------------------------------------x
No.1:10-cv-8435-BSJ-JCF
ECF Case
BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE
IN SUPPORT OF THE PLAINTIFF
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
BARBARA D. UNDERWOOD
Solicitor General
BENJAMIN N. GUTMAN
Deputy Solicitor General
SIMON HELLER
Assistant Solicitor General
120 Broadway, 25th floor
New York, NY 10271
P: 212-416-8020
F: 212-416-8962
simon.heller@ag.ny.gov
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................................... i
INTEREST OF THE STATE OF NEW YORK ............................................................. 1
ISSUE PRESENTED..................................................................................................... 5
SUMMARY OF ARGUMENT ....................................................................................... 6
ARGUMENT
............................................................................................................. 7
SECTION 3 OF DOMA DENIES EQUAL PROTECTION OF THE
LAW TO PERSONS IN SAME-SEX MARRIAGES VALID UNDER
STATE LAW........................................................................................................ 7
A.
DOMA is an Unprecedented Intrusion into the Power of the
States to Define Marriage. ....................................................................... 8
B.
DOMA Discriminates Based on Sex and Sexual Orientation and
is Therefore Subject to Heightened Scrutiny. ....................................... 11
1.
2.
C.
Sexual orientation discrimination. ............................................... 11
Sex discrimination. ........................................................................ 16
DOMA fails whatever level of scrutiny applies because it does
not advance any legitimate federal interest.......................................... 17
CONCLUSION ........................................................................................................... 25
i
TABLE OF AUTHORITIES
Cases
Page
Baehr v. Lewin,
74 Haw. 530 (1993)................................................................................................. 12
Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................ 24
Boggs v. Boggs,
520 U.S. 833 (1997) .................................................................................................. 9
Bond v. United States,
131 S. Ct. 2355 (2011) ............................................................................................ 10
Braschi v. Stahl Assocs. Co.,
74 N.Y.2d 201 (1989) ................................................................................................ 2
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................ 15
Clark v. Jeter,
486 U.S. 456 (1988) ...................................................................................... 6, 15, 17
Coyne v. Smith,
221 U.S. 559 (1911) .................................................................................................. 9
Craig v. Boren,
429 U.S. 190 (1976) .......................................................................................... 17, 24
Cruz v. McAneney,
31 A.D.3d 54 (2d Dep’t 2006) ................................................................................... 3
Dickerson v. Thompson,
73 A.D.3d 52 (3d Dep’t 2010) ................................................................................ 1-2
Dragovich v. U.S. Dep’t of Treasury,
764 F. Supp. 2d 1178 (N.D. Cal. 2011) ............................................................ 10, 23
Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................................................................ 13
Gill v. Office of Personnel Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010), appeal pending, Nos. 10-2207 & 102214 (1st Cir.) .............................................................................................. 19-20, 23
ii
TABLE OF AUTHORITIES (cont’d)
Cases
Page
Godfrey v. Spano,
13 N.Y.3d 358 (2009) ............................................................................................. 1-3
Goodridge v. Dep’t of Pub. Health,
440 Mass. 309 (2003)................................................................................................ 9
Haddock v. Haddock,
201 U.S. 562 (1906), overruled on other grounds, Williams v. North
Carolina, 317 U.S. 287 (1942)............................................................................... 8-9
Hayden v. County of Nassau,
180 F.3d 42 (2d Cir. 1999)...................................................................................... 16
Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................ 15
In re Balas,
449 B.R. 567 (Bankr. C.D. Cal. 2011) .............................................................. 17, 19
In re Estate of Ranftle,
81 A.D.3d 566 (1st Dep’t 2011) ................................................................................ 1
In re Levenson,
560 F.3d 1145 (9th Cir. Jud. Council 2009)........................................................... 17
In re Levenson,
587 F.3d 925 (9th Cir. Jud. Council 2009)................................................... 7, 19, 23
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) ................................................................................................ 11
Kerrigan v. Comm’r of Pub. Health,
289 Conn. 135 (2008)................................................................................................ 9
Kirchberg v. Feenstra,
450 U.S. 455 (1981) ................................................................................................ 18
Larson v. Valente,
456 U.S. 228 (1982) .................................................................................................. 6
Lawrence v. Texas,
539 U.S. 558 (2003) ................................................................................................ 13
iii
TABLE OF AUTHORITIES (cont’d)
Cases
Page
Lewis v. N.Y. State Dep’t of Civil Serv.,
60 A.D.3d 216, aff’d on other grounds sub nom. Godfrey v. Spano, 13
N.Y.3d 358 (2009) ..................................................................................................... 2
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................................... 17
Mandel v. Bradley,
432 U.S. 173 (1977) ................................................................................................ 24
Martinez v. County of Monroe,
50 A.D.3d 189 (4th Dep’t 2008)................................................................................ 2
Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) ................................................................................................ 13
Massachusetts v. U.S. Dep’t of Health & Human Servs.,
698 F. Supp. 2d 234 (D. Mass. 2010), appeal pending, No. 10-2204 (1st
Cir.) ..................................................................................................................... 5, 10
New York v. United States,
505 U.S. 144 (1992) ............................................................................................ 8, 11
Nixon v. Administrator of Gen Servs.,
433 U.S. 425 (1977) ................................................................................................ 24
Plyler v. Doe,
457 U.S. 202 (1982) ................................................................................................ 21
Printz v. United States,
521 U.S. 898 (1997) .................................................................................................. 9
Reed v. Reed,
404 U.S. 71 (1971) ............................................................................................ 19, 24
Romer v. Evans,
517 U.S. 620 (1996) ..................................................................................... 15, 22-23
Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995) ................................................................................................ 22
iv
TABLE OF AUTHORITIES (cont’d)
Cases
Page
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) .............................................................................................. 12, 14
Sosna v. Iowa,
419 U.S. 393 (1975) .................................................................................................. 8
Trimble v. Gordon,
430 U.S. 762 (1977) ................................................................................................ 15
United States v. Brennan,
No. 08-5171(L), 2011 WL 1679850 (2d Cir. May 5, 2011)................................ 22-23
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) ................................................................................................ 12
United States v. Lopez,
514 U.S. 549 (1995) ................................................................................................ 10
United States v. Moreno,
413 U.S. 528 (1973) .................................................................................................. 7
United States v. Virginia,
518 U.S. 515 (1996) ................................................................................................ 18
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) .................................................................................... 9
Williamson v. Lee Optical, Inc.,
348 U.S. 483 (1955) ................................................................................................ 15
Zablocki v. Redhail,
434 U.S. 374 (1978) .................................................................................................. 8
Federal Statutes
1 U.S.C. § 7............................................................................................................... 4, 16
7 U.S.C. § 2009aa-1(i) .................................................................................................. 21
11 U.S.C. § 302(a) .......................................................................................................... 4
v
TABLE OF AUTHORITIES (cont’d)
Federal Statutes
Page
26 U.S.C.
§ 1 .............................................................................................................................. 5
§ 2056(a).................................................................................................................... 4
§ 2523 ........................................................................................................................ 4
38 U.S.C. § 1311............................................................................................................. 4
42 U.S.C. § 402............................................................................................................... 4
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149.................................... 1
State Statutes
New York
Marriage Equality Act, ch. 95, 2011 N.Y. Laws __.............................................. 3-4, 10
Ch. 2, 2002 N.Y. Laws 46 ........................................................................................ 3, 14
Civil Rights Law § 40-c(2) ........................................................................................... 13
Education Law § 313 ................................................................................................... 13
Executive Law
§ 296 .................................................................................................................... 3, 13
§ 354-b....................................................................................................................... 3
Insurance Law § 2701(a) ............................................................................................. 14
Penal Law
§ 485.05 ................................................................................................................... 14
§ 240.30 ................................................................................................................... 14
Public Health Law
§ 2805-q..................................................................................................................... 3
§ 4201 ........................................................................................................................ 3
Other States
15 Vt. Stat. Ann. § 8 ...................................................................................................... 9
N.H. Rev. Stat. § 457:1-a ............................................................................................... 9
vi
TABLE OF AUTHORITIES
Miscellaneous Authorities
Page
142 Cong. Rec. H7444 (daily ed. July 11, 1996) ......................................................... 23
142 Cong. Rec. H7487 (daily ed. July 12, 1996) ......................................................... 23
142 Cong. Rec. H7494 (daily ed. July 12, 1996) ......................................................... 23
142 Cong. Rec. H7501 (daily ed. July 12, 1996) ......................................................... 23
Congressional Budget Office, The Potential Budgetary Impact of Recognizing
Same-Sex Marriages (June 21, 2004) .................................................................... 21
H.R. Rep. 104-664 (1996)......................................................................................passim
Human Rights Campaign, Employment Non-Discrimination Laws on Sexual
Orientation and Gender Identity, available at
http://www.hrc.org/issues/4844.htm ...................................................................... 14
Letter from Barry R. Bedrick, Assoc. Gen. Counsel, General Accounting
Office, to Hon. Henry J. Hyde, Chairman, House Judiciary Comm. (No.
GAO/OGC-97-16 Jan. 31, 1997), available at www.gao.gov/archive/
1997/og97016.pdf ................................................................................................... 4-5
Letter from Dayna K. Shah, Assoc. Gen. Counsel, General Accounting Office,
to Hon. Bill Frist, Senate Majority Leader, at 2 (No. GAO-04-353R Jan.
23, 2004).................................................................................................................. 18
Williams Institute, New York Census Snapshot 2010, available at
http://www3.law.ucla.edu/williamsinstitute/pdf/
Census2010Snapshot_NewYork.pdf........................................................................ 4
vii
New York Attorney General Eric T. Schneiderman submits this brief amicus
curiae on behalf of the State of New York, in support of plaintiff’s motion for
summary judgment.
INTEREST OF THE STATE OF NEW YORK
Until Congress enacted the Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2149 (DOMA), in 1996, marital status in the United States was
determined exclusively by state law. Although some federal laws turn on marital
status, the federal government generally has relied on the law of a person’s domicile
or the place where a marriage was solemnized to determine if the person was
validly married. States thus have always had the sole sovereign prerogative to
define and regulate marriage.
Exercising this sovereign prerogative, New York accords marriages between
same-sex couples the same legal validity as marriages between opposite-sex couples.
New York has long recognized as valid same-sex marriages that were solemnized
under the laws of other States or nations, such as plaintiff Edith Windsor’s
Canadian marriage to Thea Spyer. All three statewide elected executive officials—
the Governor, the Attorney General, and the Comptroller—have endorsed that
conclusion, finding it to have deep roots in New York’s general principle of marriage
recognition.
See Godfrey v. Spano, 13 N.Y.3d 358, 368 n.3 (2009) (describing
opinions of the Attorney General and Comptroller); Dickerson v. Thompson, 73
A.D.3d 52, 54-55 (3d Dep’t 2010) (citing directive of the Governor). Every New York
State appellate court that addressed the issue has agreed, rejecting the argument
that same-sex marriages were contrary to New York’s public policy. See In re Estate
of Ranftle, 81 A.D.3d 566 (1st Dep’t 2011) (Canadian same-sex marriage is valid in
New York); Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216 (3d Dep’t), aff’d
on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v.
County of Monroe, 50 A.D.3d 189 (4th Dep’t 2008). And while the New York Court
of Appeals has not yet found it necessary to address the question, finding a
narrower ground for affirmance in Godfrey, the four-judge majority said nothing to
cast doubt on the uniform lower-court authority recognizing the validity of same-sex
marriages, see Godfrey, 13 N.Y.3d at 377 (declining to reach question of validity of
same-sex marriages), and a three-judge concurrence expressly endorsed that line of
cases, id. (Ciparick, J., concurring). See generally Dickerson, 73 A.D.3d at 54-56
(summarizing New York’s “clear commitment to respect, uphold and protect parties
to same-sex relationships” both through decisional law and executive action).
Moreover, New York’s recognition of out-of-state same-sex marriages is
consistent with a long list of other actions taken by New York State and its officials
to afford equal rights to same-sex couples. For more than twenty years, New York
has recognized that same-sex partners can qualify as “family members” for purposes
of state law.
See Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 211-14 (1989)
(interpreting the State’s rent-regulation laws to treat certain same-sex partners as
family members protected from eviction).
In 2002 the Legislature enacted the
Sexual Orientation Non-Discrimination Act prohibiting discrimination on the basis
of sexual orientation—including discrimination against same-sex couples—in a wide
variety of public and private settings, including employment, education, and
2
housing. Ch. 2, 2002 N.Y. Laws 46 (codified in Executive Law § 296). In recent
years, the State has recognized same-sex domestic partnerships for a variety of
specific purposes. Among other things, domestic partners are permitted to make
claims against the September 11 victim compensation fund, see Cruz v. McAneney,
31 A.D.3d 54, 58 (2d Dep’t 2006); they are eligible for a supplemental burial
allowance for partners killed in military combat, see Executive Law § 354-b (enacted
2003); they may visit their partners in hospitals just as spouses may, see Public
Health Law § 2805-q (enacted 2004); and they may dispose of their partners’
remains, see id. § 4201(1)(c) (enacted 2006). And since the mid-1990s, the State has
permitted domestic partners of state employees to enroll in the New York State
Health Insurance Program for public employees. See Godfrey, 13 N.Y.3d at 369.
More recently, New York enacted the Marriage Equality Act, ch. 95, 2011
N.Y. Laws __, which allows same-sex couples to marry in New York. This statute
represents the next step along a path on which New York long ago embarked, the
path of extending equal treatment under law to same-sex couples. Consistent with
these earlier actions, the Marriage Equality Act effectuated the Legislature’s
express intent to treat same-sex couples and other couples equally with respect to
the basic right to enter into marriage, with the following declaration:
Marriage is a fundamental human right. Same sex couples
should have the same access as others to the protections,
responsibilities, rights, obligations, and benefits of
civil
marriage. Stable family relationships help build a stronger
society. For the welfare of the community and in fairness to all
New Yorkers, this act formally recognizes otherwise-valid
marriages without regard to whether the parties are of the same
or different sex.
3
Ch. 95, § 2, 2011 N.Y. Laws at __. The impact of this statute is significant. The Act
expresses an important New York State policy, affecting a substantial number of
New York State residents.1
Despite the long-standing tradition of state control over the definition of
marriage, Section 3 of DOMA redefines marriage for federal purposes to exclude
same-sex marriages that are valid under state law. 1 U.S.C. § 7. Because New
York has consistently expressed and implemented its commitment to equal
treatment for same-sex couples, New York has a strong interest in ensuring that
the “protections, responsibilities, rights, obligations, and benefits,” ch. 95, § 2, 2011
N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal
to those accorded to different-sex married couples. Without such equal treatment
by the federal government, New York’s statutory commitment to marriage equality
for all married couples will be substantially unrealized.
Federal law extends
numerous important benefits on the basis of marriage, including the federal estatetax exemption at issue in this case, 26 U.S.C. § 2056(a); the related gift-tax
exemption, id. at § 2523(a); social security benefits, 42 U.S.C. § 402; veteran’s
benefits, 38 U.S.C. § 1311; and the option to file joint bankruptcy petitions, which is
often advantageous to married debtors, 11 U.S.C. § 302(a). See generally Letter
from Barry R. Bedrick, Assoc. Gen. Counsel, General Accounting Office, to Hon.
Recent analysis of 2010 census data shows that there are more than 65,000
same-sex couples living in New York. Williams Institute, New York Census
Snapshot 2010, available at http://www3.law.ucla.edu/williamsinstitute/pdf/
Census2010Snapshot_NewYork.pdf.
1
4
Henry J. Hyde, Chairman, House Judiciary Comm., at 3 (No. GAO/OGC-97-16 Jan.
31, 1997) (“GAO, DOMA Letter”) (identifying thirteen categories of federal laws in
which
marital
1997/og97016.pdf.
status
is
a
factor),
available
at
www.gao.gov/archive/
In some unusual cases—such as eligibility for Medicaid, see
Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 242 (D.
Mass. 2010), appeal pending, No. 10-2204 (1st Cir.), or avoidance of the federal
income tax’s so-called marriage penalty, GAO, DOMA Letter, supra at 2; 26 U.S.C.
§ 1—same-sex married couples may fare better under federal law because they will
be treated as unmarried by operation of DOMA. But in many situations, they will
fare worse, as Windsor did with respect to the estate tax. By discriminating among
married couples based on sexual orientation and sex, DOMA deprives New York of
the ability to extend true equality to all marriages valid in the State.
ISSUE PRESENTED
Does section 3 of DOMA violate the right of married same-sex couples to
equal protection of the law?
5
SUMMARY OF ARGUMENT
By refusing to recognize for federal purposes marriages that are valid under
state law, DOMA intrudes on matters historically within the control of the States,
and undermines and denigrates New York’s law designed to ensure equality of
same-sex and different-sex married couples. Thus DOMA threatens basic principles
of federalism. Moreover, it classifies and determines access to rights, benefits, and
protections based on sexual orientation, and also based on sex.
For each of these reasons, considered separately or together, DOMA should
be subjected to heightened scrutiny under the equal protection component of the
Fifth Amendment, and it cannot withstand such scrutiny.
Considered as
discrimination based on sexual orientation, the statute should be subjected to at
least the intermediate scrutiny that applies to classifications based on sex or
illegitimacy, Clark v. Jeter, 486 U.S. 456, 461 (1988), if not to the strict scrutiny
that applies to classifications based on race, national origin, or fundamental rights,
id., as well as to discrimination among religious denominations, Larson v. Valente,
456 U.S. 228, 246 (1982). Considered as discrimination based on sex, the statute
must be subjected to intermediate scrutiny under well-established precedent. And
judicial scrutiny of this statute should be especially demanding because it intrudes
on matters that are, in our federal system of government, quintessentially within
the authority of the States. DOMA fails such heightened constitutional scrutiny
because it discriminates between same-sex married couples and different-sex
married couples without serving any important federal interest, and therefore
violates the equal protection component of the Fifth Amendment.
6
Moreover, even if the Court were to conclude that intermediate scrutiny does
not apply here, the Court should apply more than the most deferential judicial
review used in cases involving purely economic government regulation. Instead, the
Court should apply a form of rational-basis review that demands an evidence-based
connection between legitimate governmental interests and the statute, as well as
some demonstration that those interests are advanced.
Moreover, a statute is
unconstitutional even under rational-basis review if it reflects “a bare congressional
desire to harm a politically unpopular group.” United States v. Moreno, 413 U.S.
528, 534 (1973). DOMA falls squarely within this category because Congress sought
to harm married same-sex couples, and therefore the Court should invalidate
DOMA under any applicable standard of review.2
ARGUMENT
SECTION 3 OF DOMA DENIES EQUAL PROTECTION
OF THE LAW TO PERSONS IN SAME-SEX MARRIAGES
VALID UNDER STATE LAW
Section 3 of DOMA does not merely determine eligibility for a particular
federal program. It literally redefines the term marriage, and it does so in a blunt,
across-the-board manner that has no connection to the particular contexts in which
federal laws rely on marital status. This interferes with New York’s exercise of its
Whether the principles leading to the conclusion that DOMA is
unconstitutional would also require invalidation of a state law limiting marriage to
different-sex couples, such as New York’s prior law, is not directly presented by a
challenge to DOMA, see, e.g., In re Levenson, 587 F.3d 925, 931 n.5 (9th Cir. 2009)
(Reinhardt, J., for the Ninth Circuit’s Standing Comm. on Federal Public
Defenders), and need not be addressed by the Court here.
2
7
sovereign authority to define marriage and to eliminate discrimination based on
sexual orientation. Because DOMA treads so closely to—if not beyond—the limits
of federal power with respect to the States, the Court should examine carefully both
the interests it purportedly advances and the extent to which it actually serves
those interests.
A.
DOMA is an Unprecedented Intrusion into the
Power of the States to Define Marriage.
Under the federal system of government established by the United States
Constitution, there are areas of governmental authority reserved to the States alone
that are beyond the federal government’s power to regulate.
United States, 505 U.S. 144, 156 (1992).
See New York v.
Domestic relations, including
determinations of marital status, is one such area. It “has long been regarded as a
virtually exclusive province of the States,” subject only to the constitutional
limitations of due process, equal protection, and full faith and credit. Sosna v. Iowa,
419 U.S. 393, 404 (1975); see also Zablocki v. Redhail, 434 U.S. 374, 392 (1978)
(Stewart, J., concurring in the judgment) (recognizing that the right to marry “is
under our federal system peculiarly one to be defined and limited by state law”);
Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at
the time of the adoption of the Constitution, possessed full power over the subject of
marriage and divorce . . . [and that] the Constitution delegated no authority to the
Government of the United States on the subject of marriage and divorce.”),
8
overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942)
(holding that divorce decrees are entitled to full faith and credit).
Thus, the Supreme Court recognized that since the creation of the
Constitution—more than 200 years before the passage of DOMA—the definition of
marriage was within the province of the States, see Haddock, supra, and until
DOMA, federal law generally treated the definition of marriage as a subject within
the control of the States. See Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a
general matter, ‘[t]he whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States and not to the laws of the United
States.’”). But DOMA departs from the tradition of federal respect for the States’
definition of marriage, flatly rejecting the definition of marriage in New York and
five other States3 and thereby elevating the choices of some States above those
made by other States. In doing so, DOMA threatens “the constitutional equality of
the states [that] is essential to the harmonious operation of the scheme upon which
the Republic was organized.” Coyne v. Smith, 221 U.S. 559, 580 (1911).
Were Congress to require New York to repeal the Marriage Equality Act and
replace New York’s definition of marriage with DOMA’s, there would be little doubt
that this would constitute an unconstitutional “commandeering” of the sovereignty
of New York State. See Printz v. United States, 521 U.S. 898, 925 (1997). What
These states are: Connecticut, Kerrigan v. Comm’r of Pub. Health, 289
Conn. 135 (2008); Iowa, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009);
Massachusetts, Goodridge v. Dep’t of Pub. Health, 440 Mass. 309 (2003); New
Hampshire, N.H. Rev. Stat. § 457:1-a; and Vermont, 15 Vt. Stat. Ann. § 8.
3
9
DOMA does, however, is but one step short of that: it seeks to limit the effectiveness
of New York’s new law as much as possible without directly repealing it. Because
so many of “the protections, responsibilities, rights, obligations, and benefits of civil
marriage,” ch. 95, § 2, 2011 N.Y. Laws at __, are determined by federal law
governing taxation, social security benefits, veterans benefits, and health care,
DOMA goes a long way towards blocking the desired effect of laws such as New
York’s Marriage Equality Act.
Although plaintiff has not raised a Tenth Amendment claim in her complaint,
principles of federalism should inform this Court’s review of her equal-protection
claim as well. Federalism protects not merely the interests of state governments,
but also individual liberty: “By denying any one government complete jurisdiction
over all the concerns of public life, federalism protects the liberty of the individual
from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The
power of Congress is at its lowest when it seeks to discourage States from enacting
statutes, like the Marriage Equality Act, that are at the core of the States’
sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the
Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire
whether the exercise of national power seeks to intrude upon an area of traditional
state concern.”
United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J.,
concurring). So too here, the analysis of the statute must take into account that it
intrudes on an area of traditional state concern. See also Massachusetts, 698 F.
Supp. 2d at 249 (DOMA “intrudes on a core area of state sovereignty”); Dragovich v.
10
U.S. Dep’t of Treasury, 764 F. Supp. 2d 1178, 1189 (N.D. Cal. 2011) (DOMA
“impairs the states’ authority to define marriage”).
DOMA’s unprecedented
supplanting of state definitions of marriage with a federal definition should
therefore be reviewed with significant skepticism, and in recognition of the principle
that “the Constitution divides authority between federal and state governments for
the protection of individuals.” New York, 505 U.S. at 181.4
B.
DOMA Discriminates Based on Sex and Sexual Orientation
and is Therefore Subject to Heightened Scrutiny.
A statute is subjected to heightened scrutiny if it employs a suspect or quasisuspect classification, such as race or sex, or is intended to discriminate against a
group defined by such a classification. See J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 136 (1994).
DOMA discriminates among married couples based on two
classifications that warrant heightened judicial scrutiny: sexual orientation and
sex.
1.
Sexual orientation discrimination.
Although DOMA does not expressly employ classifications based on sexual
orientation, it has both the purpose and effect of discriminating against gay and
These federalism principles come into play only when state choices are
impeded by federal legislation. Federalism concerns cannot, of course, protect state
choices from the requirements of the federal Constitution; indeed, the Fourteenth
Amendment was enacted for the specific purpose of overruling contrary state
choices. Thus the federalism concerns invoked here would have no bearing on a
claim that the Equal Protection Clause of the Fourteenth Amendment requires
invalidating a state statute regulating same-sex marriage.
4
11
lesbian couples. DOMA’s enactment was in direct response to the decision of the
Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530 (1993), in which two lesbian
couples and one gay couple sought the right to marry under state law. The House
Judiciary Committee Report expressly stated that “[DOMA] was motivated by the
Hawaiian lawsuit” and the prospect of States “permitting homosexual couples to
marry” in response to an “orchestrated legal campaign by homosexual groups.”
H.R. Rep. 104-664, at 2, 4, 9 (1996). The report stated that DOMA’s purpose in part
was to express “moral disapproval of homosexuality.”
Id. at 16.
And because
heterosexual individuals are quite unlikely to marry a spouse of the same sex even
where they have the right to do so, DOMA’s practical effect is felt only by gay and
lesbian couples.
Legislative classification based on sexual orientation should trigger
heightened scrutiny. Heightened scrutiny is appropriate where “the class is saddled
with such disabilities, or subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process.”
San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). This may include “discrete and
insular minorities,” United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4
(1938), but also classes (such as women) that do not strictly speaking satisfy that
formulation, see Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973). The most
important factor in determining whether to give a classification heightened scrutiny
is that it has historically been used to discriminate in ways that are seldom if ever
12
relevant to the achievement of legitimate interests. Mass. Bd. of Ret. v. Murgia,
427 U.S. 307, 313 (1976).
Gay men and lesbians have long been subjected to purposeful unequal
treatment, including criminalization of their sexual conduct. As the Supreme Court
recognized in Lawrence v. Texas, “[w]hen homosexual conduct is made criminal by
the law of the State, that declaration in and of itself is an invitation to subject
homosexual persons to discrimination both in the public and in the private
spheres.” 539 U.S. 558, 575 (2003). Moreover, the Supreme Court held that such
discrimination served no proper governmental interest. See id. at 578 (“The State
cannot demean [the] existence [of gay men and lesbians] or control their destiny by
making their private sexual conduct a crime.”).
Recognizing this long history of invidious discrimination against gay men and
lesbians, New York statutes generally treat discrimination on the basis of sexual
orientation
like
discrimination
based
on
other
suspect
or
quasi-suspect
classifications such as race, sex, and religion. For example, New York law includes
sexual orientation as one of the protected characteristics for which discrimination is
prohibited
in
the
workplace,
organized
labor,
housing,
education,
public
accommodations, credit, and trade. See Civil Rights Law § 40-c(2); Executive Law §
296; Education Law § 313. New York law extends the special protections to persons
seeking insurance benefits for harm occurring in “areas under Nazi influence” to
those who suffered discriminated on the basis of sexual orientation. Insurance Law
§ 2701(a). And New York criminalizes hate crimes motivated by sexual orientation
13
along with crimes motivated by “race, color, national origin, ancestry, gender,
religion, religious practice, age, [and] disability.” Penal Law §§ 240.30(3), 485.05(1).
Many other States have similar laws.
See, e.g., Human Rights Campaign,
Employment Non-Discrimination Laws on Sexual Orientation and Gender Identity,
available at http://www.hrc.org/issues/4844.htm (last visited July 21, 2011) (noting
that twenty States have laws barring employment discrimination on the basis of
sexual orientation).
These laws are predicated on legislative findings that gay men and lesbians
have suffered a long history of and continue to face unjustifiable discrimination
because of their sexual orientation. The New York Legislature has expressly found
“that many residents of this state have encountered prejudice on account of their
sexual orientation, and that this prejudice has severely limited or actually
prevented access to employment, housing and other basic necessities of life, leading
to deprivation and suffering,” and that “this prejudice has fostered a general climate
of hostility and distrust, leading in some instances to violence against those
perceived to be homosexual or bisexual.” Ch. 2, 2002 N.Y. Laws at 46.
This “history of purposeful unequal treatment,” San Antonio Indep. Sch.
Dist., 411 U.S. at 28, justifies heightened scrutiny under the Equal Protection
Clause for classifications based on sexual orientation. The Court need not decide
precisely what level of heightened scrutiny—intermediate or strict—to apply to
sexual-orientation classifications in order to invalidate DOMA on constitutional
grounds.
And even were the Court to determine that sexual-orientation
14
discrimination should be given something less that intermediate scrutiny, at the
very least it deserves something more searching than the minimal scrutiny that
applies to ordinary legislative classifications, typified by the Court’s review of a
statute regulating opticians in Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955).
The Court should instead apply a form of rational-basis review that asks whether
federal recognition of lawful same-sex marriages “would threaten legitimate
interests,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985), insists
upon some evidence that such legitimate interests are actually threatened, see id. at
448-50, and requires that the connection between legitimate interests and
government regulation not be “so attenuated as to render the distinction arbitrary
or irrational,” id. at 446.5 See also Heller v. Doe, 509 U.S. 312, 321 (1993) (“[E]ven
the standard of rationality as we so often have defined it must find some footing in
the realities of the subject addressed by the legislation”). DOMA does not satisfy
this form of rational-basis review. See supra at 7; cf. Romer v. Evans, 517 U.S. 620,
634-35 (1996) (striking down a state law that denied gay men and lesbians legal
protection across the board under a demanding form of rational-basis review). The
Court need not resolve this particular question regarding the appropriate level of
The intermediate scrutiny applied to discrimination based on sex and
illegitimacy developed from this more exacting form of rational-basis review as the
Court developed its equal protection jurisprudence. Compare Trimble v. Gordon,
430 U.S. 762, 767 (1977) (scrutiny of classification based on illegitimacy is not
“toothless,” in part because it “approach[es] sensitive and fundamental personal
rights”), with Clark, 486 U.S. 456 (applying intermediate scrutiny to classification
based on illegitimacy).
5
15
scrutiny,
both because DOMA also discriminates on the basis of sex, which
indisputably requires intermediate scrutiny, and because it fails any level of
scrutiny that could be applied here.
2.
Sex discrimination.
DOMA discriminates not only on the basis of sexual orientation, but also, and
even more explicitly, on the basis of sex or gender. On its face the statute employs
express sex-based classifications. Section 3 uses sex-based language to classify by
marital status: “In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word ‘marriage’ means only a legal union between
one man and one woman as husband and wife, and the word ‘spouse’ refers only to a
person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (emphasis
added). DOMA thus makes federal marital status dependent upon the sex of the
partners in the marriage: A man who marries a woman is recognized as married
under federal law, but if the same man were to marry a man his marriage would
not be recognized.
For this reason, too, DOMA should be subjected to heightened scrutiny. A
law that “expressly classifies persons on the basis of . . . gender,” as does section 3 of
DOMA, is discriminatory on its face. Hayden v. County of Nassau, 180 F.3d 42, 48
(2d Cir. 1999). And it is settled law that discrimination on the basis of sex or
gender is subject to “intermediate” scrutiny, under which it will be upheld only if
16
sex is “substantially related to an important governmental objective.” Clark, 486
U.S. at 461; see also Craig v. Boren, 429 U.S. 190, 197 (1976).
Indeed, DOMA discriminates based on sex in much the same way that the
antimiscegenation statute at issue in Loving v. Virginia, 388 U.S. 1 (1967),
discriminated based on race. Loving rejected Virginia’s contention “that, because
its miscegenation statutes punish equally both the white and the Negro
participants in an interracial marriage, these statutes, despite their reliance on
racial classifications do not constitute an invidious discrimination based upon race.”
Id. at 8. Here too, DOMA discriminates on the basis of sex even though it applies to
both men and women who marry persons of the same sex. See In re Levenson, 560
F.3d 1145, 1147 (9th Cir. Jud. Council 2009) (Reinhardt, J., for the Ninth Circuit’s
Standing Comm. on Federal Public Defenders) (“the denial of benefits at issue here
[required by DOMA] was sex-based and can be understood as” sex discrimination);
In re Balas, 449 B.R. 567, 577 (Bankr. C.D. Cal. 2011) (op. of twenty bankruptcy
judges) (“DOMA is gender-biased because it is explicitly designed to deprive the
Debtors of the benefits of other important federal law solely on the basis that these
debtors are two people married to each other who happen to be men.”).
C.
DOMA fails whatever level of scrutiny applies because
it does not advance any legitimate federal interest.
Because section 3 of DOMA is subject to heightened scrutiny, it can be upheld
only if, at a minimum, it satisfies intermediate scrutiny—that is, its discriminatory
classification must be “substantially related to the achievement of an important
17
governmental objective.”
Kirchberg v.
Feenstra, 450 U.S. 455, 459 (1981).
“Focusing on the differential treatment for denial of opportunity for which relief is
sought, the reviewing court must determine whether the proffered justification is
‘exceedingly persuasive.’
The burden of justification is demanding and it rests
entirely on” those defending the statute. United States v. Virginia, 518 U.S. 515,
532-33 (1996).
And “[t]he justification must be genuine, not hypothesized or
invented post hoc in response to litigation.” Id. at 533.
DOMA’s defenders cannot meet this burden. DOMA effectively amended a
large and unknown number of federal statutes in one fell swoop.
The General
Accounting Office identified by means of an electronic search over 1,000 federal
statutes affected by DOMA, but it cautioned that because of “the many ways in
which the laws of the United States Code may deal with marital status,” it may not
have captured every relevant law.
Letter from Dayna K. Shah, Assoc. Gen.
Counsel, General Accounting Office, to Hon. Bill Frist, Senate Majority Leader, at 2
(No. GAO-04-353R Jan. 23, 2004). The legislative history of DOMA purports to
identify a number of specific interests that the statute advances, but its blunt
approach makes it hard to identify any coherent policy it serves.
Nor can DOMA survive the more exacting form of rational-basis review that
courts have sometimes applied to classifications that have not yet been recognized
as suspect or quasi-suspect, but nevertheless merit more searching review. See
Reed v. Reed, 404 U.S. 71 (1971) (finding, under rational-basis review, that sex-
18
based classification was “the very kind of arbitrary legislative choice forbidden by
the Equal Protection Clause of the Fourteenth Amendment”).
Section 3 of DOMA does not advance any of the legitimate interests Congress
cited in support of the statute:
●
Congress asserted an interest in “defending and nurturing the
institution of traditional, heterosexual marriage.” H.R. DOMA Rep., supra, at 12,
15 n.53. It is doubtful that the interest in nurturing the institution of marriage can
be limited to heterosexual marriage, but even if it could, that interest would not be
served by denying federal benefits to married same-sex couples. It is not plausible
that the denial of benefits will induce same-sex couples who are already married to
divorce and marry members of the opposite sex. See Gill v. Office of Personnel
Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010), appeal pending, Nos. 10-2207 &
10-2214 (1st Cir.).
It is equally implausible that the prospect of being denied
federal benefits will induce unmarried same-sex couples to separate and marry
members of the opposite sex. See In re Levenson, 587 F.3d at 932. And allowing
same-sex married couples to invoke federal rights associated with marriage, such as
the right to file a joint bankruptcy petition, will not “in any way harm any marriage
of heterosexual persons.” In re Balas, 449 B.R. at 578.
●
The asserted interest in “encouraging responsible procreation and
child-rearing,” H.R. DOMA Rep., supra at 13, is likewise not served by
discriminating among validly married couples, all of whom may be or become
parents, whether by adoption or otherwise. Depriving same-sex married couples of
19
the federal benefits of their marital status will not make them better parents. On
the contrary, this interest would be better served by extending the federal benefits
associated with marriage to same-sex couples who have children, because the
children would then enjoy “the immeasurable advantages that flow from the
assurance of a stable family structure, when afforded equal recognition under
federal law.”
See Gill, 699 F. Supp. 2d at 389 (quotation marks and footnote
omitted) (quoting Goodridge v. Dep't of Public Health, 440 Mass. 309, 335 (2003)).
●
The interest in “protecting . . . democratic self-governance,” H.R.
DOMA Rep., supra at 16, is undermined, not advanced, by DOMA, because it
interferes with the democratic decisions of States like New York to guarantee
marriage equality regardless of sexual orientation and sex. This is true whether
the States adopted marriage equality through express legislation, as in New York,
New Hampshire, and Vermont, or through judicial rulings that themselves are the
product of democratic choices about the structure of the state court system and the
contents of state constitutions. Nor does depriving same-sex married couples of the
federal benefits of their marital status promote “democratic self-governance” in any
other way.
●
The asserted interest in preserving scarce government resources, H.R.
DOMA Rep., supra at 18, is not enough standing alone to satisfy intermediate
scrutiny.
See Plyler v. Doe, 457 U.S. 202, 227 (1982) (rejecting interest in
preservation of state resources as sufficient to justify discrimination against
undocumented aliens). And in any event, it is served only in the most sporadic and
20
haphazard way—if at all—by DOMA.
To be sure, exempting any couples from
certain types of federal benefits—such as tax exemptions or federal aid programs—
saves the cost of those benefits. But many statutes affected by DOMA—such as
spousal conflict-of-interest statutes, e.g., 7 U.S.C. § 2009aa-1(i)—do not involve any
expenditure of funds. Others, such as exempting married same-sex couples from
the so-called marriage penalty imposed on many married couples by the federal
income tax laws, impose greater costs on the federal government than if DOMA did
not exist. Without a careful analysis of the financial impact of DOMA arising from
each of the over 1,000 statutes it affects, it is impossible to determine with any
precision whether it actually preserves government resources.
And the
Congressional Budget Office—although recognizing that there is “significant
uncertainty” about the issue—ultimately concluded that “[o]n balance, legalization
of same-sex marriages would have only a small impact on federal tax revenues” and
that the net effect would be to save the federal government money. Cong. Budget
Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages 2, 3
(June 21, 2004). As confirmed by this report, at a minimum DOMA has “little
chance” of “directly and materially advanc[ing]” the asserted interest in saving
governmental resources. See Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995);
see also Romer, 517 U.S. at 632 (enactment’s “sheer breadth is so discontinuous
with the reasons offered for it that the amendment seems inexplicable by anything
but animus toward the class it affects”).
21
●
To the extent Defendants seek to assert that DOMA is necessary to
promote a uniform federal definition of marriage, this argument should be rejected
at the outset because it was never identified by Congress as a basis for DOMA. See
United States v. Brennan, No. 08-5171(L), 2011 WL 1679850, at *30 (2d Cir. May 5,
2011) (under heightened scrutiny courts do not consider post hoc rationalizations).
Moreover, even if it warranted consideration, the lack of uniformity in the definition
of marriage is a direct consequence of the primacy of state regulation of marriage,
see supra at 8-11, and is therefore integrally related to a significant principle of the
federalism established by our Constitution, not a problem whose solution can justify
discrimination. In the context of defining marriage, which has always been a core
function of the States, a bare interest in uniformity is illegitimate.
●
The
only
asserted
interest
actually
advanced
by
DOMA’s
unprecedented expansion of federal power is expressing moral disapproval of
homosexuality and same-sex relationships.
Congress specifically acknowledged
that other interests it asserted in support of DOMA were animated by this
overarching interest: “These reasons—procreation and child-rearing—are in accord
with nature and hence have a moral component.” H.R. DOMA Rep., supra at 15.
Moreover, Congress forthrightly expressed its moral condemnation of same-sex
marriage: “Civil laws that permit only heterosexual marriage reflect and honor a
collective moral judgment about human sexuality.
This judgment entails both
moral disapproval of homosexuality, and a moral conviction that heterosexuality
22
better comports with traditional (especially Judeo-Christian) morality.” 6 Id. at 1516 (footnote omitted).
But as the Supreme Court explained in striking down a state law prohibiting
government action designed to protect gay men and lesbians from discrimination, “a
bare desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest.” Romer, 517 U.S. at 634 (ellipsis omitted). Thus, while
“[t]he animus toward, and moral rejection of, homosexuality and same-sex
relationships are apparent in” DOMA’s legislative history, Dragovich, 764 F. Supp.
2d at 1190, Congress’s desire to express moral condemnation cannot justify denying
federal benefits to married same-sex couples. See In re Levenson, 587 F.3d at 932;
see also Gill, 699 F. Supp. 2d at 396 (“Congress undertook this classification for the
Individual congressional proponents of DOMA expressed their disapproval
of homosexuality and the gay-rights movement in starker terms. For example,
then-Representative (now Senator) Tom Coburn asserted that his constituents
believe “homosexuality is immoral, that it is based on perversion, that it is based on
lust.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996). Representative David
Funderburk asserted: “Homosexuality has been discouraged in all cultures because
it is inherently wrong and harmful to individuals, families, and societies. The only
reason it has been able to gain such prominence in America today is the near
blackout on information about homosexual behavior itself.” 142 Cong. Rec. H7487
(daily ed. July 12, 1996). Representative Lamar Smith opined that “[s]ame-sex
‘marriages’ . . . legitimize unnatural and immoral behavior.” Id. at H7494.
Representative Henry Hyde, while disclaiming mean-spiritedness or bigotry,
asserted that “[t]he homosexual movement has been very successful in intimidating
the psychiatric profession.” Id. at H7501.
6
23
one purpose that lies entirely outside of legislative bounds, to disadvantage a group
of which it disapproves.”).7
Defenders of DOMA occasionally have argued that the lower courts are bound
by the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972),
but that ruling does not foreclose the argument that DOMA violates equal
protection of the law. The precedential effect of a summary dismissal for want of a
substantial federal question extends no further than “the precise issues presented
and necessarily decided by” the dismissal. Mandel v. Bradley, 432 U.S. 173, 176
(1977). The “precise issues” presented in Baker differ from those presented here in
at least two significant ways. First, Baker addressed whether a State was obliged
to permit same-sex couples to marry, not whether the federal government could
discriminate among lawful marriages on the basis of sex or sexual orientation.
Second, it is not clear that Baker presented a claim of discrimination on the basis of
sex as well as sexual orientation, but even if it did, at the time sex discrimination
was subject only to rational-basis review. See Reed, 404 U.S. 71. Later cases,
however, definitively held that heightened scrutiny applies to classifications based
on sex. See, e.g., Craig, 429 U.S. at 197. Thus Baker is not dispositive because it
The absence of any non-punitive interest supporting DOMA also suggests
that it constitutes legislative punishment of same-sex married couples and therefore
violates the Bill of Attainder Clause of Article I, section 9. See Nixon v.
Administrator of Gen Servs., 433 U.S. 425, 475-76 (1977) (“Where . . . legitimate
legislative purposes do not appear, it is reasonable to conclude that punishment of
individuals disadvantaged by the enactment was the purpose of the
decisionmakers.”).
7
24
presumptively applied rational-basis review, which is not the standard that applies
here.
In sum, DOMA does not advance any legitimate governmental interest. It
cannot survive the scrutiny that is warranted because of the groups that it
disadvantages and because of the intrusion on an area that is at the heart of state
sovereign power. Accordingly, it must be invalidated as a violation of the equal
protection component of the Fifth Amendment’s Due Process Clause.
CONCLUSION
This Court should grant plaintiff’s motion for summary judgment and declare
section 3 of DOMA unconstitutional.
Dated: July 26, 2011.
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
BARBARA D. UNDERWOOD
Solicitor General
BENJAMIN N. GUTMAN
Deputy Solicitor General
By:
/s/ Simon Heller
SIMON HELLER
Assistant Solicitor General
120 Broadway, 25th floor
New York, NY 10271
P: 212-416-8020
F: 212-416-8962
simon.heller@ag.ny.gov
25
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