Gill v. OPM Update

Sixteen months ago, I reported on Gill v. Office of Personnel Management, a suit against various governmental agencies by same-sex married and widowed persons challenging the constitutionality of §3 of the federal Defense of Marriage Act.

The United States District Court for the District of Massachusetts (specifically, Judge Joseph L. Tauro) granted summary judgment on many of the plaintiffs' claims today. Opinion here. [PDF]

Back then, I opined that the case was philosophically flawed because it sought equal protection at the expense of expanding the federal welfare state. It was and continues to be my opinion that the federal welfare state (by which I mean the power of Congress to confiscate and redistribute wealth) is incompatible with individual rights like freedom of speech, or equal protection under the law, and that to argue that the latter are served by the former does not advance the cause of liberty.

After declining to apply strict scrutiny to DOMA, the Court found that §3 failed to pass even the much more lenient rational basis test. Congress lacked any rational basis for DOMA because creating a federal definition of a familiar relationship--something unprecedented in Congress' then 207-year history of legislation--was beyond Congress' legitimate scope of interest. This is significant, so it bears repeating: The Court determined that Congress had no legitimate interest whatsoever in displacing state-law determinations of who is and is not married. "The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states."

For those who don't recognize it, this is a "states' rights" argument. Of course the idea that a state could have rights is ludicrous, and the phrase is often misused that way. But our system of government does draw a distinction between local law and national law--a structure intended to serve as a protection against the spread of tyranny. The Tenth Amendment to the Constitution of the United States is occasionally cited (by persons unfamiliar with its history) as a constitutional limit on the power of the federal government, in favor of the states and their citizens:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Unfortunately, this amendment has, for over two hundred years, meant very little. It is frequently ignored by courts and is regarded in the lion's share of precedent as an inkblot, with no legal effect whatsoever on the power of Congress to make laws on whatever subject is colorably within the ambit of Article I § 8. The Tenth Amendment doesn't make an appearance in Judge Tauro's decision in Gill. Instead, it is discussed at length in his decision in another case also decided today, Massachusetts v. Health and Human Services, in which the Commonwealth independently sued the federal agencies for ignoring the Commonwealth's marital status determinations.

Neither decision will breathe any life into the dead Tenth Amendment, however. In Gill, DOMA §3 was found unconstitutional because there was no rational connection between restricting federal benefits based on marital status to opposite-sex couples and the government's stated objective of maintaining the legal status quo until the interstate controversy over same-sex marriage is resolved. (Yes, really, that's what they argued the purpose of DOMA was in court. The government attorneys disavowed the purposes originally offered by Congress.) And the focus in the companion case was on whether DOMA could be shoehorned into the Spending Clause, with no discussion of whether the Tenth Amendment protects citizens from government intrusion in their lives.

The case seems to me to have been resolved in the best possible way. It finds §3 unconstitutional without having to declare homosexuals a protected class in order to do it.

(It appears my favorite claim--the one by the plaintiff who was denied an amended passport to reflect a change of name by marriage--was no longer part of the case when it reached summary judgment.)

Tom G Varik