Defense of Marriage Act

In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he found DOMA to be vulnerable: "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity."[52] In January 2005, however, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would not survive a constitutional challenge.[53]

President Barack Obama's 2008 political platform endorsed the repeal of DOMA.[54][55] On June 12, 2009, the Justice Department issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States, continuing its longstanding practice of defending all federal laws challenged in court.[56] On June 15, 2009, Human Rights Campaign President Joe Solmonese wrote an open letter to Obama that asked for actions to balance the DOJ's courtroom position: "We call on you to put your principles into action and send legislation repealing DOMA to Congress."[57] A representative of Lambda Legal, an LGBT impact litigation and advocacy organization, noted that the Obama administration's legal arguments omitted the Bush administration's assertion that households headed by opposite-sex spouses were better at raising children than those headed by same-sex spouses.[56]

On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits challenging DOMA Section 3. He wrote:[58]

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

He also announced that although it was no longer defending Section 3 in court, the administration intended to continue to enforce the law "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."[58]

In a separate letter to Speaker of the House John Boehner, Holder noted that Congress could participate in these lawsuits.[59]

On February 24, the Department of Justice notified the First Circuit Court of Appeals that it would "cease to defend" Gill and Massachusetts as well.[60] On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's intermediate scrutiny standard of review.[61] The DOJ made similar arguments in a filing in Gill on July 7.[62]

In June 2012, filing an amicus brief in Golinski, two former Republican Attorneys General, Edwin Meese and John Ashcroft, called the DOJ's decision not to defend DOMA Section 3 "an unprecedented and ill-advised departure from over two centuries of Executive Branch practice" and "an extreme and unprecedented deviation from the historical norm".[63]

On March 4, 2011, Boehner announced that the Bipartisan Legal Advisory Group (BLAG) would convene to consider whether the House of Representatives should defend DOMA Section 3 in place of the Department of Justice,[64][65] and on March 9 the committee voted 3–2 to do so.[66]

On April 18, 2011, House leaders announced the selection of former United States Solicitor General Paul Clement to represent BLAG.[67] Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.[68][69] On April 25, 2011, King & Spalding, the law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case.[70] The House's initial contract with Clement capped legal fees at $500,000,[71] but on September 30 a revised contract raised the cap to $1.5 million.[72] A spokesman for Boehner explained that BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."[73]

Golinski v. Office of Personnel Management was a challenge to Section 3 of DOMA in federal court based on a judicial employee's attempt to receive spousal health benefits for her partner. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her wife. When the application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge Alex Kozinski, in his administrative capacity, ruled in 2009 that she was entitled to spousal health benefits,[74] but the Office of Personnel Management (OPM) announced that it would not comply with the ruling.

On March 17, 2011, U.S. District Judge Jeffrey White dismissed the suit on procedural grounds but invited Golinski to amend her suit to argue the unconstitutionality of DOMA Section 3,[75] which she did on April 14.[76] Following the Attorney General's decision to no longer defend DOMA,[58] the Bipartisan Legal Advisory Group (BLAG), an arm of the House of Representatives, took up the defense. Former United States Solicitor General Paul Clement filed, on BLAG's behalf, a motion to dismiss raising arguments previously avoided by the Department of Justice: that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children."[77][78] On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.[61][79]

On February 22, 2012, White ruled for Golinski, finding DOMA "violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution." He wrote that Section 3 of DOMA could not pass the "heightened scrutiny" or the "rational basis" test. He wrote,[80]

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

While the case was on appeal to the Ninth Circuit, on July 3, 2012, the DOJ asked the Supreme Court to review the case before the Ninth Circuit decides it so it can be heard together with two other cases in which DOMA Section 3 was held unconstitutional, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.[81] The Supreme Court chose to hear Windsor instead of these cases, and following the Supreme Court decision in Windsor the Ninth Circuit dismissed the appeal in Golinski with the consent of all parties on July 23.[82]

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management, based on the Equal Protection Clause and the federal government's consistent deference to each state's definition of marriage prior to the enactment of DOMA. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman.[83][84] On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.[85]

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."[86] Tauro, the judge also handling Gill, heard arguments on May 26, 2010.[87]

On July 8, 2010, Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases.[88][89] He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution.[90][91] Those decisions were stayed after the DOJ filed an appeal on October 12, 2010.[92]

On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that Section 3 of DOMA was unconstitutional.[93] Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996.[93] Seventy major employers also filed an amicus brief supporting the plaintiffs.[94] A three-judge panel heard arguments in the case on April 4, 2012, during which the DOJ for the first time took the position that it could not defend Section 3 of DOMA under any level of scrutiny.[95] On May 31, 2012, the panel unanimously affirmed Tauro's ruling, finding Section 3 of DOMA unconstitutional.[96][97] On June 29, BLAG filed a petition for certiorari with the Supreme Court.[98] The DOJ did so on July 3, while asking the Supreme Court to review Golinski as well.[81] The Commonwealth of Massachusetts filed a response to both petitions adding the Spending Clause and Tenth Amendment issues as questions presented.[n 3] The Supreme Court denied these petitions on June 27, 2013, following its decision in Windsor.

On November 9, 2010, the American Civil Liberties Union filed United States v. Windsor in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried.[99][100] New York is part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.

New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011.[101]

Same-sex couple celebrating legal victory at San Francisco Pride 2013

On June 6, 2012, Judge Barbara Jones ruled that based on rational basis review Section 3 of DOMA is unconstitutional and ordered the requested tax refund be paid to Windsor. The plaintiff commented, "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."[102] Windsor's attorneys filed a petition of certiorari with the Supreme Court on July 16, asking for the case to be considered without waiting for the Second Circuit's review.[103] On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional.[104][105] According to an ACLU press release, this ruling was "the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review".[106] In an opinion authored by Chief Judge Dennis Jacobs, the Second Circuit Court of Appeals stated:[107]

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition, but law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.

On December 7, 2012, the Supreme Court agreed to hear the case. Oral arguments were heard on March 27, 2013.[108] In a 5–4 decision on June 26, 2013, the Court ruled Section 3 of DOMA to be unconstitutional, declaring it "a deprivation of the liberty of the person protected by the Fifth Amendment."[1]^: 25

On July 18, 2013, the Bipartisan Legal Advisory Group (BLAG), which had mounted a defense of Section 3 when the administration declined to, acknowledged that in Windsor "[t]he Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute."[109]

Pedersen v. Office of Personnel Management is a case filed by GLAD in Connecticut on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire, in which GLAD repeats the arguments it made in Gill.

On July 31, 2012, Judge Vanessa Lynne Bryant ruled that "having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."[110] She held that "laws that classify people based on sexual orientation should be subject to heightened scrutiny by courts" but determined Section 3 of DOMA "fails to pass constitutional muster under even the most deferential level of judicial scrutiny."[111][112] The case was appealed to the Second Circuit, and on August 21, 2012, Pedersen asked the Supreme Court to review the case before the Second Circuit decides it so it can be heard together with Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.[113] The Supreme Court denied these petitions on June 27, 2013, following its decision in Windsor.

Other cases that challenged DOMA include:[114]

• Dragovich v. Department of the Treasury, No. 10-1564 (N.D. Cal.), a class action in which California same-sex couples seek equal access to California's long-term care insurance program for public employees and their families. U.S. District Court Judge Claudia Wilken on May 24, 2012, found Section 3 of DOMA and certain IRS regulations violated the plaintiffs' equal protection rights.[115]
• Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.) Hara is one of the plaintiffs in Gill.
• Torres-Barragan v. Holder, No. 10-55768 (9th Cir.) An immigration-related DOMA challenge in which the district court rejected the constitutional challenges.[116]
• Cozen O'Connor v. Tobits, No. 11-00045-CDJ, Pennsylvania, in which two parties dispute who inherits the proceeds of a law firm's profit-sharing plan under ERISA and DOMA. The DOJ filed a brief arguing the unconstitutionality of DOMA.[117] Following the decision in Windsor, Judge C. Darnell Jones II ruled that the widow qualified as the deceased's spouse since Illinois, their state of domicile, recognized them as spouses in a civil union as defined by Illinois.[118] The deceased's parents dropped their appeal on August 30.[119]
• On April 5, 2012, Chief Judge James Ware of the U.S. District Court for the Northern District of California ordered the federal court clerk to reimburse Christopher Nathan, a court employee, for the costs of health insurance coverage for his same-sex spouse comparable to that denied him by Section 3 of DOMA.[120] On November 21, 2012, the Ninth Circuit Judicial Conference affirmed Ware's decision and ordered the court to determine the amount due Nathan and pay him within 10 days.[121]

On October 13, 2011, Carmen Cardona, a U.S. Navy veteran, filed a lawsuit in the United States Court of Appeals for Veterans Claims seeking disability benefits for her wife that the Veterans Administration and the Board of Veterans Appeals had denied.[122] Cardona was represented by the Yale Law School Legal Services Clinic.[123] At the request of BLAG, which defended the government's action, and over Cardona's objections, the court postponed oral argument in Cardona v. Shinseki pending the Supreme Court's disposition of writs of certiorari in other DOMA cases.[124]

On October 27, 2011, the Servicemembers Legal Defense Network (SLDN) brought suit in federal court on behalf of several military servicemembers and veterans in same-sex marriages. In a November 21 filing in the case of McLaughlin v. Panetta, they wrote, "Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion." The benefits at issue include medical and dental benefits, basic housing and transportation allowances, family separation benefits, visitation rights in military hospitals, and survivor benefit plans.[125] The case was assigned to Judge Richard G. Stearns. One of the plaintiffs in the case, lesbian Charlie Morgan, who was undergoing chemotherapy, met with an assistant to Boehner on February 9, 2012, to ask him to consider not defending DOMA.[126] The case is on hold at the request of both sides in anticipation of the outcome of two other First Circuit cases on appeal, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services.[127] On February 17, the DOJ announced it could not defend the constitutionality of the statutes challenged in the case.[128] In May 2012, the parties filed briefs arguing whether BLAG has a right to intervene.[129] On June 27, Stearns asked the parties to explain by July 18 why given the decision in Windsor he should not find for the plaintiffs.[130] On July 18, BLAG's response acknowledged that "[t]he Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and asked to be allowed to withdraw from the case. It took no position on the two statutes at issue in the case, which define a "spouse" as "a person of the opposite sex", except to say that "the question of whether [that definition] is constitutional remains open".[131]

Tracey Cooper-Harris, an Army veteran from California, sued the Veterans Administration and the DOJ in federal court on February 1, 2012, asking for her wife to receive the benefits normally granted to spouses of disabled veterans.[132] BLAG sought a delay in Cooper-Harris v. United States pending the resolution of Golinski, which the attorneys for Cooper-Harris, the Southern Poverty Law Center, opposed. The court denied BLAG's motion on August 4.[133] In February 2013, Judge Consuelo Marshall rejected the DOJ's argument that the case could only be heard by the Board of Veterans' Appeals and allowed the case to proceed.[134] BLAG asked to withdraw from the lawsuit on July 22.[135]

In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.[136][137]

On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed BLAG's objections to the joint filing:[138][139]

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors' right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.

A spokesman for House Speaker Boehner said BLAG would not appeal the ruling,[140] On July 7, 2011, the DOJ announced that after consultation with BLAG it would no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".[141]

Bi-national same-sex couples were kept from legally living in the United States by DOMA's Section 3, which prevented one spouse from sponsoring the other for a green card.[142] Following some uncertainty after the Obama Administration determined Section 3 to be unconstitutional, the United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying such applications.[143] With respect to obtaining a visitor's visa, Bureau rules treated bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".[144]

Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists.[145] The U.S. refused to recognize their marriage, and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign[146] A Boston Globe editorial commented, "Great strides toward equality for gays have been made in this country, but the woeful fate of Tim Coco and Genesio Oliveira shows that thousands of same-sex couples, even in Massachusetts, still aren't really full citizens."[147] The editorial gained the attention of Senator John F. Kerry, who first lobbied Attorney General Eric Holder without success.[148] He then gained the support of Homeland Security Secretary Janet Napolitano, who granted Oliveira humanitarian parole, enabling the couple to reunite in the U.S. in June 2010.[149] Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.[150]

On September 28, 2011, in Lui v. Holder, U.S. District Court Judge Stephen V. Wilson rejected a challenge to DOMA, citing Adams v. Howerton (1982).[151] The plaintiffs in that case had unsuccessfully challenged the denial of immediate relative status to the same-sex spouse of an American citizen.[152][153] Early in 2012, two bi-national same-sex couples were granted "deferred action" status, suspending deportation proceedings against the non-U.S. citizen for a year.[154][155] A similar Texas couple had a deportation case dismissed in March 2012, leaving the non-citizen spouse unable to work legally in the United States but no longer subject to the threat of deportation.[156]

On January 5, 2012, the U.S. District Court for the Northern District of Illinois in Chicago decided the suit of a same-sex binational couple. Demos Revelis and Marcel Maas, married in Iowa in 2010, sought to prevent the USCIS from applying Section 3 of DOMA to Revelis's application for a permanent residence visa for Maas and, in the court's words, "that their petition be reviewed and decided on the same basis as other married couples."[157] Judge Harry D. Leinenweber, a Reagan appointee, denied the government's motion to dismiss. BLAG has argued for the suit to be dismissed.[158] In July the court stayed proceedings until mid-October because the USCIS was considering denying the plaintiffs' request on grounds unrelated to DOMA.[159]

On April 2, 2012, five bi-national same-sex couples represented by Immigration Equality and Paul, Weiss filed a lawsuit, Blesch v. Holder, in the District Court for the Eastern District of New York, claiming that Section 3 of DOMA violated their equal protection rights by denying the U.S. citizen in the relationship the same rights in the green card application process granted a U.S. citizen who is in a relationship of partners of the opposite sex.[158] On July 25, Chief Judge Carol Amon stayed the case pending the resolution of Windsor by the Second Circuit.[160]

Immigration rights advocate Lavi Soloway reported on June 19, 2012, that the Board of Immigration Appeals (BIA) had in four cases responded to green card denials on the part of the U.S. Citizenship and Immigration Services (USCIS) by asking the USCIS to document the marital status of the same-sex couples and determine whether the foreign national would qualify for a green card in the absence of DOMA Section 3. He said the BIA is "essentially setting the stage for being able to approve the petitions in a post-DOMA universe."[161]

On April 19, 2013, U.S. District Judge Consuelo Marshall ordered that a suit brought in July 2012 by Jane DeLeon, a Philippine citizen, and her spouse, Irma Rodriguez, a U.S. citizen, could proceed as a class action. The plaintiffs, represented by the Center for Human Rights and Constitutional Law, contended that DeLeon was denied a residency waiver because of DOMA Section 3.[162][163]

On June 28, 2013, the USCIS notified U.S. citizen Julian Marsh that it had approved the green card petition for his Bulgarian husband Traian Popov. Both are residents of Florida.[164] On July 3, the USCIS office in Centennial, Colorado, granted Cathy Davis, a citizen of Ireland, a green card based on her marriage to U.S. citizen Catriona Dowling.[165]

In 2009, United States Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt declared DOMA unconstitutional in in re Levenson, an employment dispute resolution tribunal case, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson.[166][167] As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.

On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the 14th Amendment requires all U.S. state laws to recognize same-sex marriages.[177] This left Section 2 of DOMA as superseded and unenforceable.