Proposition 8 Ruling Analysis: The DOMA Factor

By restricting marriage at the federal level to only those unions between one man and one woman, DOMA Section 3 denies legally married gay couples access to a plethora of federal rights and entitlements that come with marriage. Therefore, Nancy Gill, a Postal Service employee, could not add her spouse as a beneficiary under Ms. Gill's enrollment in the Federal Employees Health Benefits program (FEHB) or as a covered person under the government's vision and dental plan or under her employee flexible spending account. The Gay and Lesbian Advocates and Defenders (GLAD) filed suit — Gill v. Office of Personnel Management (D. Mass. 2010) — challenging DOMA Section 3 as a clear denial of equal protection, due process, and the prerogatives of the States.

In 2010, Judge Joseph Tauro of the District of Massachusetts found for Ms. Gill, declaring DOMA unconstitutional under a rational basis standard:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution (Gill, slip op. at 38).

Since that momentous decision, the Department of Justice defended, but then withdrew its defense of DOMA in accordance with President Obama's view that (a) heightened scrutiny, rather than rational basis, should apply to DOMA, and (b) DOMA fails under that standard. The Republican-controlled House stepped in to defend DOMA, but not without its own side drama. Briefs — from GLAD and the DOJ in opposition to DOMA, and from the House in support — were filed at the First Circuit at the end of 2011, so we expect a decision in the coming months.

While this was going on, Perry v. Brown was not challenging DOMA, but directly attacking a ban on marriage recognition for gays, making its way through the federal courts of the Ninth Circuit, culminating in February 7's powerful statement of gay equality:

It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment of same-sex couples as people. Just as the criminalization of "homosexual conduct … is an invitation to subject homosexual persons to discrimination in both the public and private spheres," so too does the elimination of the right to use the official designation of "marriage" for the relationships of committed same-sex couples send a message  that gays and lesbians are of lesser worth as a class — indeed, that the enjoy a lesser societal status (Perry, slip op. at 73, internal citations omitted).

DomaBoth cases are practically impactful: If Prop 8 is struck down, many more thousands of gay couples can marry; if DOMA is struck down, Ms. Gill and her wife and families like theirs can share in important federal rights that may amount to several tens of thousands of dollars. One commentator told me that "marriage at the states means nothing if DOMA's still there" because DOMA denies the rights associated with marriage. However, a gay rights advocate countered: "Not only does marriage mean more than the stuff the federal government gives us for being married, but without marriage rights at the state level, DOMA is almost superfluous."

I think they're both a little right and a little wrong; both DOMA and bans on marriage need to go. But, which do we want to go first?

Gill (and its companion case, Massachusetts v. Department of Health and Human Services (D. Mass. 2010), and the other DOMA cases of Pedersen, Windsor, and Golinski) seems to offer a more attractive first shot at the Supreme Court for three reasons, two of which are political or strategic, one of which is legal. I will make the argument for each and then challenge them.

I encourage you to evaluate the arguments and decide for yourself, but I believe that none of the arguments are that persuasive.

1. DOMA creates stark examples of clear discrimination about tangible "stuff" that people understand.

At their core, the DOMA cases are about access to state largesse — health care benefits, survivorship rights, preferred tax filing status, and so on — which provide obvious examples fo discrimination without the baggage of the word "marriage." That's really two arguments in one. First, Gill does not seek a right to marry; Ms. Gill is already married. And, it is that fact that puts her second-class status on display: all married couples, except only those gay ones, receive all the important benefits she is denied. Second, any case about "marriage" brings with it historical, religious, and moral complications that can obscure the pure legal question of discrimination.

Then again, the DOMA cases, like Perry, are about more than just stuff, money, and entitlements. DOMA enshrines discrimination in federal law, declaring that same-sex marriages are not worthy of the same honor as opposite-sex marriages. That is only partially a problem of attendant rights; DOMA is a powerful statement of inequality, and one that teaches our children that gays are less worthy of respect. In that way, the DOMA cases bring as much baggage to the Court as Perry.

2. DOMA is losing support much faster than bans on gay marriage, giving the Court political cover for overturning the law.

As I have argued elsewhere, DOMA is being attacked from all sides. There are legal challenges running through the First, Second, and Ninth Circuits; twenty three bankruptcy judges in Los Angeles declared DOMA unconstitutional; Democratic Senators have proposed and held hearings on the Respect for Marriage Act (ROMA), which would repeal DOMA; former DOMA sponsors, such as Bob Barr of Georgia, have come out publicly against the law now that they have had more than 15 years to think about it; the Obama Administration has all but halted the deportation of legally married gay bi-national couples despite DOMA's blockade of partner visas for gay foreign national spouses; and, most importantly, President Obama has declared DOMA unconstitutional and put the weight of the Executive behind the effort to overturn the odious law. This context matters because as many Court watchers know, the Justices are usually loathe to step too far out in front of public opinion. Political and legal developments like these give the Court political cover and may push cautious or conservative (little c) judges to act with more confidence.

But, bans on marriage are also losing support. Latest polling shows that anywhere between 51 to 54 percent of Americans support marriage recognition for gay couples, and since Judge Walker's original decision in Perry in August 2010, New York has joined a growing club of marriage equality states that will soon welcome Washington State, may welcome Maryland and Illinois, and would welcome New Jersey if it weren't for Governor Christie. It seems as if politics is catching up to equality in the court of public opinion.

3. The DOMA cases offer mutliple avenues for the Supreme Court to declare DOMA unconstitutional.

Gill and Massachusetts v. HHS offer the Court supposedly progressive and conservative ways to overturn DOMA, and Judge Tauro used them all. He found that DOMA violates the Equal Protection Clause because, even under the rational basis standard, DOMA had no rational connection to any conceivable government interest. The bare desire to harm gays as a group cannot satisfy that requirement. Because Judge Tauro decided Gill on these grounds, he declined to address the appropriate standard of review for discrimination on the basis of sexual orientation. He also held that by forcing states to discriminate against its citizens, it deputized states into the business of equal protection violations. Even more anathematic to small government conservatives, DOMA violates the Tenth Amendment, which reserves for the States all those powers not enumerated in the Constitution.

Marriage law — including what constitutes a valid marriage — has always been the exclusive purview of the States and by creating a federal definition of marriage for the first time, the federal government was encroaching upon the prerogatives of the States without Constitutional authorization. These arguments for DOMA's unconstitutionality run the spectrum from liberal to conservative, making it more likely that the Court could agree to strike down the law. Of course, these conservative arguments may come back and haunt liberals in the future cases (including challenges to the health care law and other cases involving federal power), so Gill may warn us to be careful what we wish for. However, given the Obama Administration's role in the DOMA cases and the DOJ's position on heightened scrutiny, these cases offer a more obvious opportunity for the Court to resolve the standard of review appropriate for sexual orientation discrimination.

But, the narrowness of the Perry decision could also unite liberals and conservatives on the Court. Some experts argue that by deciding Perry on the ground that it effectuated a taking away of rights from a particular group on the basis of pure animus, the Ninth Circuit made it less likely that the Supreme Court would even take the case; after all, Perry does not look like the usual case for which the Supreme Court grants review (no circuit split, no outstanding unresolved constitutional issue that the case requires be addressed in order for full resolution, and so on).

This would be a great victory for marriage recognition advocates. I also think that Judge Reinhardt decided Perry on an acceptable, but not the best, interpretation of Romer. The Supreme Court could think like I do and quibble with Perry's use of Romer and all the issues Judge Reinhardt left unresolved, reversing and returning the case to the same panel for a more comprehensive decision. By that time, the political arguments above may well tilt even further toward a broadly worded rejection of gay marriage bans.

This legal argument distinguishing Perry and Gill, while not a slam dunk, tilts in favor of pushing forward with Gill. The Court's denial of certiorari in Perry would be a great victory, a victory made that much sweeter by a positive decision from the Supreme Court in Gill.

What do you think? Which case would you like to see resolved first? Why?


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.


  1. RJ says

    I’d definitely like to see DOMA go first as it costs my partner and I at least $2,000 extra in taxes annually that a straight married couple does not have to pay. I get my health insurance through him and my health insurance coverage is taxed as an added benefit, which also pushes him into a higher tax bracket.

  2. TH says

    Ari – I’m curious as to your thoughts on what the Perry decision could mean for marriage equality in Washington state, should the inevitable ballot initiative there succeed in repealing the just-passed law. Do you think it would count as a “taking away” of rights as we saw in California, since the law in Washington is designed not to go into effect until the referendum takes place?

  3. says

    @TH: it *could* be argued that the vote and signing grants the right regardless of when the bill is supposed to go into effect. if so, then perry would apply directly; if not, no. its a substantive legal issue that would have to be addressed. unfortunately, i am not well versed enough in federal law to know if that precise question has already been answered, especially in the 9th Circuit. i can do some research when i have a moment, if you dont mind being a little patient with me.

  4. StraightGrandmother says

    I would like to see Gill go first, I think it is a stronger case than Perry. I do think Perry IS strong and we will win on it, but Gill I think is simpler to understand and rule on.

    Perry = My future life would be better IF

    Gill = I can quantify right now that I am harmed.

  5. MiddleoftheRoader says

    Gill seems like the better case, but it’s too early to say so because we need to see what the First Circuit says. I should add that Judge Tauro, who is a decent human being, was appointed to the court by President Nixon! He is not a “liberal, activist judge” (to use the words used by people like Romney, Gingrich and Santorum).

    The main reason why Gill seems like a better case is that it appears the federal government will recognize as valid (for federal purposes) every marriage of two opposite-sex partners that a state recognizes as valid (if this isn’t so, would someone please explain). So, for the several states that recognize ‘common law marriage’, the federal government will also recognize it; for the 20 states that allow cousins to be married, the federal government will recognize it; for the several states that allow 12, 13, 14, 15, 16 or 17 year olds to get married (with parental or judge consent — yes, even 12 & 13 year olds can marry!), the federal government will recognize it; for states allowing opposite-sex partners of any age to marry if the female is pregnant (by the male), the federal government will recognize it. So, the bottom line is that DOMA singles out only marriage by two people of the same sex for unequal treatment. Is there a compelling reason for that, or is it even rational — that is the key question that will determine this appeal.

    It would be hard to argue that there is a compelling reason for the federal government to recognize an opposite-sex marriage of (childless) first cousins or 13-year olds, but not recognize a same-sex marriage of two adults (particularly when they are recognized as co-parents if they have children) But it is a closer question if there is a “rational basis” for failing to recognize the same-sex marriage. Ari’s analysis of the Perry case deals with the scope of the “rational basis” test, and so the resolution of the DOMA cases (and of Perry) will depend on whether the Supreme Court has a view that “rational basis” means any conceivable reason (even if it is against the weight of overwhelming evidence) or whether “rational basis” means that the reason has to have some legitimate quantum of evidence before it can be considered “rational”.

    We will have to wait to see what the Supreme Court says about the “rational basis” test………but given the historical deference of the federal government to State recognition of two-person marriages, and how far that deference still extends to minors who are married and common law marriages and marriages of first cousins, etc., it seems like Gill represents a good case for Supreme Court review. Also, keep in mind that Gill seems to deal only with the question of whether the federal government must recognize a two-person marriage that a state permits — it does not get into the question of whether another state has to recognize that marriage. So Gill could be decided by striking down the part of DOMA that involves only federal recognition, and Gill would not have to get into the part of DOMA that says no state has to recognize a same-sex marriage performed in another state.

    Just some food for thought.

  6. MM says

    Ari – Is there any sense when the First Circuit will hear Gill? Why has this taken so long if the district court ruled in 2010?

  7. Kendall says

    If DOMA is struck down, and since civil marriage is basically a contract between two people, would those states that have bans on same-sex marriage have to now recognize them because of the full faith and credit clause?

  8. AidenRaccoon says

    DOMA should go first. Without DOMA, any couple could travel to a state where it is legal, satisfy the state requirement and return to their home state and still be legally married when they return to their home state. The federal benefit is much more important to the health of the family than the state benefit.

  9. says

    @MM: in part because of the shift in government policy. all briefing is in, hearings in the first circuit are scheduled in short order. i havent found the exact date of the hearing in my cursory research. but, the first circuit doesnt have very many judges, so it tends to be a little slow. i would expect a decision in the next 4 months.

  10. daftpunkydavidavid says

    i would like to see the DOMA cases first. not only will that enable same-sex couples who are already married access the fed’s “largesse”, it will remove the federal government’s sanction of these anti-gay laws. this reversal at the federal level will no doubt affect states that have yet to inscribe equality on their law books.

    i would, of course, love for the 9th circuit court of appeals’ ruling to stand (either by denial of cert. from, or by affirmation by, the scotus). but that victory will fail to have an immediate effect on people already married on the east coast + iowa.

    on the other hand, a victory against doma in the 1st and 2nd circuits would give currently married people in california (and perhaps those who will be married in the very proximate future in california should prop. 8 be dead for good, and washington, maryland, new jersey, and illinois, should legislative efforts eventually succeed) immediate access to marriage at the federal level.

    finally, and as you’ve also said, the prop 8 case has been talked about so much (and rightly so; for many living in “severely” anti-gay states, this represented the only shot at equality in the near future). but this focus on prop 8 also means that small c conservatives willing to affirm equality, but lacking in courage, may shy away from deciding on prop 8 the way we would prefer. the doma cases do represent less of a “hot-topic” in my opinion. many who are against equality in marriage for gay americans won’t feel as “forced” to accept equality, so to speak; and i also believe the news coverage of this will likely be much less intense than a prop 8 ruling supporting equality would.

    for all these things, this incremental, stealth, and yet very substantial progress is, in my opinion, more desirable, than an all-out war in the news and on the streets about “teh gays”.

  11. StraightGrandmother says

    MM I could be wrong, but I seem to recall off the top of my head that Gill is scheduled for oral arguments in April.

  12. MiddleoftheRoader says

    Actually, from personal experience, I can say that the First Circuit tends to be fairly prompt in issuing decisions. This is because it IS a small court with very few judges, so they all know each other very well and have frequently served on 3-member panels together. That means they tend to respect each other and get to the ‘meat of the matter’ more quickly than many judges on the larger, more diverse circuits — and they all know Judge Tauro.

    Also, while this Circuit does not tend to be political, it’s worth noting that the First Circuit consists of Maine, NH, MA, RI and Puero Rico (yes, Puerto Rico). 3 of the 5 Active Judges, and 4 of the 8 Active & Senior Judges, are from states (MA & NH) that recognize same-sex marriage, so it’s not an unusual thing to them from a cultural perspective, except in Puerto Rico (but Judge Torruela has been on the court for many years and is considered a moderate on issues like abortion, etc).

  13. Lymis says

    Tactically, what seems to me to be ideal would be a narrow ruling striking down the section of DOMA that allows the federal government to refuse benefits while choosing not to address whether states must grant marriage rights or recognize marriages they disapprove of would be ideal.

    First, it would immediately grant “real marriage” to all the married people in states that currently recognize their marriages.

    Second, it would deeply undercut the single biggest “reason” for civil unions rather than marriage equality in individual states – the claim that “civil unions grant all the same benefits as marriage.” The states who are granting civil unions but not marriage would come under immediate pressure to upgrade to marriage because they are denying couples access to tangible federal benefits. It would also create the potential situation where a couple who married out of state could be considered federally married but having a civil union at the state level.

    Third, it would present very real portability issues, and give a great deal more leverage in the states that don’t allow marriage, and again, for those married out of state, may create the situation where they have federal recognition even without state recognition.

    And finally, it would allow more states to choose marriage equality, and a later subsequent case specifically about marriage as a fundamental right of citizens, which could then strike down all the anti-gay marriage laws and amendments.

    The flip side, starting with a case mandating marriage equality nationwide,, seems to be a recipe for another Roe v Wade or Brown vs the Board – heightened anger and frustration and local heel-dragging.

  14. bgk says

    Ari —

    Once again your insight sheds light for me on this situation. Thank you. I’d be interested in reading your research on the 9th circuit case law re: referendum 74 in Washington State about Same Sex Marriage.

    Thank you for taking these complicated subjects and breaking them down.

    All my best.

  15. Jere says

    Ari, here’s a question that may be putting the cart before the horse at this point. If and when DOMA is struck down, will the Federal government automatically recognize my civil partnership from the UK and allow me to sponser my British partner for permanent residency? At the moment, UK civil partnerships are marriages in everything but name, but I wonder if the terminology will be an issue.

  16. Bingo says

    And maybe lawyers talk a different language, but it would nice to use a word that doesn’t carry the connotations of “largesse”.

  17. Rich says

    If Gill goes first, we head to New York and marry: California law will recognize the legal equivalence and treat us as registered domestic partners regardless of whether Perry wins or loses.

  18. Scott says

    Ari – Do you feel that either or both of these cases are too “politically charged” for any changes to occur on SCOTUS before they come up? Will any of the justices likely be required to recuse themselves (thinking of Kagan or Sotomayor here, depending on what they heard in lower courts or in their previous roles), and could that set us up for a potential “backstab” from the swing members of the court (i.e. Kennedy or Souter?)

  19. says

    @scott: thank you for your question. Justice Souter is no longer on the court, and there is nothing about either the Prop 8 case or the DOMA cases that would cause either Justices Sotomayor or Kagan to recuse themselves. Justices Ginsburg and Kennedy are aging, but there are no signs that either are retiring in the next year.

  20. says

    Jere: Ari will probably weigh in, but I think the answer to your question is “we don’t know yet.” I think back to when we had only Civil Unions in Vermont, which were defined as exactly the same as marriage except for terminology. And we had no idea whether one could ever petition for federal rights, even if DOMA were struck down, because all the federal laws refer to “marriage” and not “CU.”

    Isn’t there an equivalent problem in Europe, where different countries don’t necessarily recognize things like a French PACS? Or the French would not necessarily recognize a NL marriage or a UK partnership even as a PACS?

    That’s one of the main reasons going for marriage is so important: everyone all over the world seems to know what it is.

  21. Rich says


    “That’s one of the main reasons going for marriage is so important: everyone all over the world seems to know what it is.”

    It would be more factual to say that it’s like pornography: nobody can define it but we recognize it when we see it. ;-}

  22. JR Buckley says

    While ‘Gill’ probably has the best chances for a sweeping decision, I’d rather play it safe and have SCOTUS decline to hear ‘Perry,’ allowing more same-sex couples to marry before the justices actually take up the matter.

  23. Randy says

    When we talk of striking down DOMA, focus is usually only on the federal part.

    But there is a state part, which says that no state has to recognize the marriages of another state.

    When is that part being challenged?

  24. Markt says

    Kennedy is the only Justice who matters at the Supreme Court; as he is the only member of the conservative block that can be swayed.

    His libretarian leanings will be more likely to accept a rational basis argument over a heightened scrutiny argument. A rational basis argument would only limit governmental discrimination – a limitation he has shown support for in the past in relation to LGBT issues (i.e., Romer).

    Heightened scrutiny could lead to inclusion for LGBT individuals under various protections like discrimination statutes. Although Kennedy appears to believe government should not be able to discriminate against the LGBT community, libretarians often feel discrimination laws can go too far and, for example, limit individuals’ everyday choices (i.e., to discriminate). So I feel strongly that rational basis is the best legal argument for the one Justice that matters.

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  26. jpeckjr says

    Ari, this question has been on my mind all along with the various marriage cases. We have been challenging marriage restrictions / advocating marriage equality largely on equal rights grounds. Would there be strategic value in arguing on contract grounds?

    Marriage under the law (as opposed to under religion) is defined as a civil contract. In what other area of contracts would two persons of the same gender be prohibited from entering solely because of they are of the same gender? If two men are competent to own a business together, why are they incompetent to be married to one another?

  27. says

    @jpeckjr: thank you for your question. well, the short answer is, bc marriage is a special contract or more than just a contract in our society. liberals tend to see marriage as a contract of commitment between two consenting adults. but, thats not really how our society views marriage. it has honorific elements, intangible elements. so, there are values important in marriage that are not covered by the way we think about contracts. plus, even under a simple contract analysis, civil marriage is NOT a contract between two persons. it is a contract between three entities: the two ppl getting married and the state. if you want the state out of marriage entirely, then sure… a contract is a contract is a contract (subject to due process). but when the state is involved — as the party granting honor, benefits, recognition — the state has a right and responsibility to determine the bases for its participation.

  28. Chris Gable says

    Gil first. Because there on-the-fence states that will need to repeal their constitutional amendments at the ballot box – OR, CO, NV to start with (2014) and a Gil win provides great optics for that — the federal gov’t would recognize your marriage and 12 – 15 other states (by then) but not X state. In 2016 it provides a great argument in the next wave of states – WI, OH, MI, AZ, NV (they have to vote on an amendment twice at the ballot in NV), possibly MT and AK (they have strong libertarian streaks) – all have voter initiated constitutional amendment mechanisms. Perry also might not even be granted cert by SCOTUS as it is so narrow.

  29. Chris Gable says

    A Gil victory provides great impetus for states with no constitutional amendment as well (that won’t be in the waves this year or next), for instance NM, PA, and libertarian leaning WY.

  30. Rich says


    Re: contract-plus concept

    We already have a model of contracts where the state is an implicit party and where its participation confers special legal status: corporation law.

    The LLC/PLC strikes me as a better base for designing domestic arrangements than the unlimited liability and community property features of traditional marriage.

    Business ventures are free to be organized as partnerships, but in fact most find the additional requirements of getting and maintaining a corporate charter worth the additional effort.

  31. Bill says

    Definitely DOMA has to go soon! My international partner and I can’t be married legally for his immigration visa as would breeder types of marriages. This costs us a lot of money for him to travel back and forth to only be in the US for 90 days at a time. Not withstanding that the immigration system is this country is totally broken, with DOMA out of the way it provides a path for our marriage to overrule immigration’s denial of our visa petition.

  32. Derrin says

    I’ll echo the opinion of others here: Gil first. It’s simply more realistic, less risky, and the immediate benefits would be broad.

    I’m actually living overseas, and have been for many years now, because there is no other way for my husband and me to be together. I want so desperately to return to America, but my own government is shutting me out because they will refuse entry to my lawful spouse. If they’re shutting him out, they’re shutting me out.

    Until DOMA goes, I’m stuck.

  33. enough already says

    If DOMA goes, then it will lead to so many enormous intra-state conflicts that the whole matter will have to be resolved fairly quickly.
    So, I guess Gill would be best as the first step.

    I think we will have a better idea of what may happen in front of the Supremes when we see how they revisit Citizens United. If the Robert’s court actually reverses itself or only makes small adjustments, it will bode well for us.
    If, however, they are only granting this stay and permitting review to pretend to be reasonable, then we are in as much danger in front of them as I have always thought. I don’t count on Kennedy being on ‘our side’, not one bit.

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