Time & Attendance
By Matt Dunning
Oct. 19, 2012
For the second time this year, a federal appeals court has struck down the central provisions of the 1996 Defense of Marriage Act, declaring unconstitutional the law’s denial of federal marriage benefits to gay and lesbian couples.
In a 2-1 ruling handed down Oct. 18, the 2nd Circuit U.S. Court of Appeals in Manhattan said that although DOMA’s definition of marriage as the union of one man and one woman does not invalidate legal same-sex marriages, it unfairly prevents them from enjoying economic benefits afforded to couples of the opposite sex, including the right to file joint federal tax returns or collect their spouse’s Social Security after their death.
The law also prohibits spouses of gay federal employees from accessing their government-sponsored health care and retirement benefits, though the federal Office of Personnel Management recently eased some restrictions on couples.
The challenge to the law’s constitutionality was brought to the U.S. District Court for the Southern District of New York in 2010 by Edith Windsor, who was served with a $363,000 tax bill for the property she inherited after her wife died in 2009. Under the DOMA law, she would not have had to pay the tax had she been in a heterosexual marriage. The court vacated the tax bill on the grounds that the underlying law violates the 14th Amendment to the Constitution in its denial of rights to lawfully married gay couples.
The Justice Department initially had argued for the law in district court, but later declared it would no longer defend the statute against constitutional challenges. At the direction of House Speaker John Boehner, the House Bipartisan Legal Advisory Group took up the law’s defense in the Justice Department’s absence, and was its chief advocate during the appeal.
In its decision, the appellate court concurred in principle the district court’s ruling, as well as a similar decision in the Court of Appeals for the 1st Circuit in Boston, both of which had said they could see no rational basis for the law.
However, the 2nd Circuit’s went a step further, applying for the first time a substantially greater level of protection for gay couples based on a long legacy of discrimination against them and their relative powerlessness to protect themselves politically.
“It is easy to conclude that homosexuals have suffered a history of discrimination,” Appellate Chief Justice Dennis Jacobs wrote in the court’s majority opinion. Less easy to conclude, he said, is the precise extent to which the gay community is represented in positions of political power.
Nevertheless, Judge Jacobs said, “it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private — which, for our purposes, amounts to much the same thing.”
The enhanced protection under the 14th Amendment is significant in that it requires the defense of a presumably discriminatory law to provide evidence that it serves an “important government interest,” instead of merely a rational basis, as justification for the law’s discriminatory effects.
During the appellate trial, attorneys for the Legal Advisory Group argued that the law was justified in that it maintained a consistent definition of marriage for legal purposes, protected federal revenues, and preserved the traditional sanctity of marriage.
In the majority opinion, Judge Jacobs said the court had not been presented with any substantive evidence that supported any of the Legal Advisory Group’s claims.
“DOMA is an unprecedented breach of long-standing deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity,” Judge Jacobs said. “Moreover, DOMA’s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce and paternity.”
On the issue of preserving the tradition and sanctity of marriage, Judge Jacobs said the court was similarly unconvinced, noting that neither federal nor state law “is concerned with holy matrimony.”
“A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door,” Judge Jacobs said, referring to St. Andrew’s Roman Catholic Church, which is adjacent to the appellate courthouse in Lower Manhattan.
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