Some observations on Judge Tauro’s ruling in Gill v. Office of Personnel Management (summarized here) that the Defense of Marriage Act’s definition of marriage violates federal equal-protection principles:
1. As I have previously discussed, one year ago, in a decision in which Solicitor General Elena Kagan acknowledges that she was involved, the Department of Justice made the decision to gratuitously abandon strong grounds for defending DOMA, as it filed a brief declaring that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As the Volokh Conspiracy’s Dale Carpenter, an ardent proponent of same-sex marriage, wrote at the time (emphasis added):
This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.
The Department of Justice reiterated that same position in Gill. (See DOJ Brief at 19 n. 10.) Addendum: Kagan’s responses (available here), submitted today, to written questions indicate that she was involved in Gill. (See response to Sessions Q29.c.iv.)
2. Tauro’s ruling would be ridiculous but for DOJ’s abandonment of Congress’s stated justifications for DOMA. Under proper application of the very deferential “rational basis” review, for example, it would be enough to recognize that it would have been reasonable for Congress in 1996 to regard traditional marriage as a valuable vehicle for encouraging responsible procreation and childbearing. But, as Carpenter predicted, Tauro just regurgitates DOJ’s flawed arguments. See slip op. at 23-25. (The “consensus” that has supposedly developed since 1996 “among the medical, psychological, and social welfare communities” about the best environment for raising children—even if it were not as politically tainted as, say, ACOG’s “expert” advice on partial-birth abortion—says nothing about what Congress may reasonably have believed in 1996. And Justice Scalia’s observation, in his dissent in Lawrence v. Texas, that the ability to procreate has never been a precondition to marriage is irrelevant under rational-basis review, both because a rough fit between means and end more than suffices and because the marital norm of fidelity helps ensure that the fertile spouse in an infertile marriage doesn’t procreate children outside the marriage.)
3. Even then, the grounds to which DOJ retreated—“Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits” (DOJ Brief at 18)—probably should have been enough under rational-basis review (though that’s certainly no excuse for DOJ’s abandonment of stronger grounds).
Tauro’s assertion that “There can be no dispute that the subject of domestic relations is the exclusive province of the states” is wrong: To cite one set of counterexamples, Congress’s enabling acts for the admission of Arizona, New Mexico, Oklahoma, and Utah as states required a bar on polygamy. (And, as Hadley Arkes points out, Tauro contradicts himself, as his own position compels the conclusion that the federal Constitution intrudes on this supposedly “exclusive province” by requiring same-sex marriage.) More importantly, the assertion is irrelevant, as DOMA merely defines what “marriage” and “spouse” mean in the provisions of federal law in which they appear.
Tauro somehow bumbles from the proposition that Congress had historically seen fit to incorporate state-law definitions of marriage into federal law to the illogical conclusion that Congress must do so.