<em>Gill v. Office of Personnel Management</em>

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.

Tom G Varik