A dress rehearsal for a national redefinition of marriage quietly took place last week in a ruling from the Ninth Circuit Court of Appeals. A single judge, acting in his capacity as chair of the circuit’s Standing Committee on Federal Public Defenders, wrote the opinion. A public defender wanted a same-sex spouse (from a ceremony that took place before Proposition 8 banned gay marriage in the state) to be treated as a family member–and thus to be covered by his health-insurance policy. That request was denied on the grounds that the federal Defense of Marriage Act (DOMA) defines marriage as the union of a man and a woman for all federal purposes. Such purposes include employment by the federal government.
Judge Stephen Reinhardt disagreed with this reasoning. He concluded that the application of DOMA violated not only the court’s employment policy but also the Constitution. He ordered the employer to process the application and said that “any future beneficiary addition requests are also to be processed without regard to the sex of the listed spouse.”
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Since this decision does not create precedent that other courts must follow, what is most important is not the outcome but the reasons given for that outcome. Reinhardt’s opinion provides a blueprint for a future federal decision holding not only that DOMA is unconstitutional, but also that the Constitution mandates a redefinition of marriage in every state. His reasoning does not withstand scrutiny, but that has rarely stopped judges intent on writing laws instead of interpreting them (of whom Reinhardt is one of the most flagrant examples).
The decision makes three arguments: DOMA constitutes unlawful sex discrimination, DOMA constitutes unlawful sexual-orientation discrimination, and DOMA is not grounded in any rational justification.
The first argument is the simplest–the public defender “was unable to make his spouse a beneficiary of his federal benefits due solely to his spouse’s sex.” Thus, sex discrimination. This logic is not new–it was the conclusion of a 1993 ruling of the Hawaii Supreme Court (subsequently mooted by a state marriage amendment)–but it has not been widely followed because outside this very specific circumstance, marriage laws treat men and women precisely the same. Both may marry someone of the opposite sex, and both gain access to their spouses’ benefits.
The second argument borrows the analysis of the California Supreme Court in its marriage-redefinition decision. As quoted by Judge Reinhardt, “By limiting [benefits] to opposite-sex couples, the . . . statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation.”
This is a highly controversial assertion, because in terms of individuals’ orientations, marriage laws are neutral. Those who identify as homosexual may marry those of the opposite sex, and those who identify as heterosexual may not marry those of the same sex. This emphasis on male-female pairing, rather than on the orientation of the male or the female individual, stems from what are perhaps the state’s primary interests in marriage: encouraging those who may create children to take responsibility for the children they create and for one another, and providing to children, whenever possible, the opportunity to know and be raised by their own mother and father.
Reinhardt’s third rationale–that DOMA “cannot survive even rational basis review”–is the most sweeping. Basically, it asserts that even if a judge considers DOMA under the most deferential legal standard, he will fail to find a sufficient rational justification for the law.
In coming to this conclusion, Reinhardt first purports to assess Congress’s intentions in enacting DOMA. One such goal, by his account, was to express “a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state.” Another was to express “the government’s disapproval of homosexuality, preference for heterosexuality, or desire to discourage gay marriage.” These would be rather absurd purposes for Congress to have, not just morally and intellectually but also legally: The Supreme Court has already ruled that a desire to harm a minority is not an adequate justification for a law.
Next, Reinhardt recasts Congress’s expressed interest “in defending and nurturing the institution of traditional, heterosexual marriage” as a desire to encourage gay people “to enter into marriages with members of the opposite-sex by the government’s denial of benefits to same-sex spouses,” or a desire to “discourage same-sex couples from entering into same-sex marriages.” These are very odd readings of Congress’s stated purpose, which, in reality, simply recognized the importance of child-bearing and -rearing to the institution of marriage.
The opinion does attempt a disclaimer in a footnote: “Whether a state may deny such status to same-sex couples is beyond the scope of this decision.” It does not take much imagination, however, to conclude that if a federal law defining marriage as the union of a man and a woman is so irrational as to violate the Constitution’s Fifth Amendment, the same analysis will doom an identical state law.
While the analysis represents a fundamentally flawed reading of the Constitution and of marriage law, that does not mean it won’t prevail among judges who think like Reinhardt. Thus, last week’s opinion should put us on notice of how some in the government understand marriage, and of what could happen if they are given the opportunity to set marriage policy. Watching the dress rehearsal makes clear that this is a show that ought not to go on.
