Com­plaint here. [pdf]

Var­i­ous plain­tiffs mar­ried to or for­merly mar­ried to and now wid­owed by per­sons of the same sex under Mass­a­chu­setts law after Goodridge filed suit in the United States Dis­trict Court for Dis­trict of Mass­a­chu­setts yes­ter­day (case no. 1:2009cv10309) directly chal­leng­ing the con­sti­tu­tion­al­ity of § 3 of the Fed­eral Defense of Mar­riage Act, Pub L. No. 105–199, 110 Stat. 2419 (1996) (cod­i­fied at 1 U.S.C. § 7) under implied equal pro­tec­tion afforded by the 5th Amendment’s Due Process Clause.

(For those who aren’t aware, the “Equal Pro­tec­tion Clause” under which equal pro­tec­tion chal­lenges are most often raised is part of the 14th Amend­ment and applies only to the States, not the fed­eral gov­ern­ment. How­ever, the 5th Amendment’s Due Process clause is inter­preted to include an equal pro­tec­tion pro­vi­sion sim­i­lar, but not iden­ti­cal to, the one in the 14th Amend­ment. Bolling v. Sharpe, 347 U.S. 497. The instant case is an equal pro­tec­tion chal­lenge to DOMA under this doctrine.)

The plain­tiffs were denied fed­eral ben­e­fits by var­i­ous fed­eral agen­cies on the ground that DOMA pro­hib­ited fed­eral recog­ni­tion of their mar­riages. The rel­e­vant por­tion of the Act reads:

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 wife.

Two plain­tiffs are gov­ern­ment employ­ees who have been denied health ben­e­fits for their spouses under the health insur­ance pro­grams offered by the gov­ern­ment as their employer. Their spouses are named as plain­tiffs but have ques­tion­able stand­ing. Both pri­mary plain­tiffs are employed by gov­ern­ment agen­cies that should not exist: the United States Postal Ser­vice and the Social Secu­rity Admin­is­tra­tion. A fifth plain­tiff is the sur­viv­ing wid­ower of a for­mer gov­ern­ment employee who has been denied survivor’s ben­e­fits. This plaintiff’s dece­dent was a mem­ber of Congress.

Four plain­tiffs have sought to file income tax returns as “mar­ried fil­ing jointly”, and have incurred greater tax lia­bil­ity by fil­ing as “sin­gle” or “head of house­hold” than they would have incurred had they been able to file as “mar­ried fil­ing jointly.”

Three plain­tiffs are wid­ow­ers who have been denied lump-​​sum Social Secu­rity death ben­e­fits. This is a clearly improper welfare-​​state ben­e­fit. Another plain­tiff seeks to increase her social secu­rity ben­e­fits on the basis of her spouse’s higher life­time earn­ing dur­ing their rela­tion­ship. Her spouse is named as a plain­tiff, with dubi­ous stand­ing. This plain­tiff seeks this increase based on the entire rela­tion­ship, not merely dur­ing the time of the mar­riage. This par­tic­u­lar claim raises extremely neg­a­tive PR impli­ca­tions, see below.

One plain­tiff sought and was denied a renewed pass­port in his mar­ried name. Under the law of all states (includ­ing Mass­a­chu­setts), either spouse may effect an imme­di­ate, legal change of name by exe­cut­ing a mar­riage license in the cho­sen mar­ried name. This plain­tiff chose to take his spouse’s last name, and was denied a pass­port bear­ing that name when he offered his mar­riage license as proof of the legal name change. His spouse is named as a plain­tiff, and I can think of no viable argu­ment by which the spouse can claim standing.

All of these claims (except the last one) are exactly why Con­gress passed the DOMA — to pre­vent gay cou­ples from draw­ing on the fed­eral purse.

Some of the ben­e­fits demanded by the plain­tiffs are ben­e­fits that result from a rela­tion­ship with the fed­eral gov­ern­ment as employ­ees, albeit as employ­ees of improper agen­cies. But in gen­eral there isn’t any­thing wrong with the gov­ern­ment employ­ing peo­ple and com­pen­sat­ing them. Ancil­lary ques­tion: can the gov­ern­ment as employer offer health insur­ance as com­pen­sa­tion, and if so, in what form? If the gov­ern­ment can offer to pay for health insur­ance for its employ­ees, can it legit­i­mately place any non-​​performance-​​based restric­tions on it?

The social secu­rity claims are a PR night­mare, because they rep­re­sent exactly what pro­po­nents of DOMA feared when the Act was rammed through Con­gress in 1996. (I’ve read most of the Con­gres­sional Record con­cern­ing the Act for an arti­cle I am writ­ing. I won’t cite to it here, because, trust me, you don’t want to read it.) Addi­tion­ally, one of these claims seeks SSA recog­ni­tion of a les­bian rela­tion­ship prior to mar­riage, and even prior to the legal­iza­tion of mar­riage in Mass­a­chu­setts. The wrong kind of gay mar­riage oppo­nent will latch onto this fea­ture to whip up rhetoric in favor of fur­ther com­pli­cat­ing legislation.

Of all the claims, the pass­port one is, in my view, the best. It is also fairly weak. For one thing, the plain­tiff could sim­ply go to a Mass­a­chu­setts court and request an addi­tional order of change of name, sep­a­rate from the mar­riage license, and offer that order to the State Depart­ment (yes, that is why Hillary Clin­ton is named as a defen­dant — she’s the Sec’y of State now) as proof of change of name.

All of the claims suf­fer from a major defect. They claim vio­la­tion of the 5th Amendment’s silent equal pro­tec­tion clause on the grounds that plain­tiffs have been treated dif­fer­ently from sim­i­larly sit­u­ated opposite-​​sex cou­ples. But plain­tiffs are not sim­i­larly sit­u­ated with opposite-​​sex cou­ples. They are mar­ried in a form of mar­riage that is dis­tinctly dif­fer­ent than opposite-​​sex mar­riage, not just at law, but in fact. Same-​​sex rela­tion­ships are dif­fer­ent from opposite-​​sex rela­tion­ships, mar­ried or not. The com­plaint relies exclu­sively on this “sim­i­larly sit­u­ated” argu­ment, and does not make any argu­ment that Con­gress’ dif­fer­ent treat­ment of some­thing which is, in fact, dif­fer­ent is in vio­la­tion of equal pro­tec­tion. The com­plaint alleges that the dis­parate treat­ment is made “with­out jus­ti­fi­ca­tion in excess of Con­gres­sional author­ity,” but the bur­den of proof in this case will be on plain­tiffs to show that Con­gress’ exer­cise of its author­ity to treat dif­fer­ent things dif­fer­ently had no ratio­nal basis. (Gay mar­riage is not a fun­da­men­tal right, afford­ing strict scrutiny. Being gay is not a sus­pect clas­si­fi­ca­tion afford­ing strict scrutiny, although some have argued that Lawrence v. Texas sug­gests that it might be some­thing spe­cial, sub­ject­ing statutes dis­crim­i­nat­ing on that basis to inter­me­di­ate scrutiny, like statutes dis­crim­i­nat­ing on the basis of gender.)

In sum, this is not the best set of claims on which to chal­lenge § 3 of DOMA.

More on this later. Maybe. If I’m not too busy.