Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT

The New Ruling Finding DOMA Unconstitutional, and Conservative Lies About Gay Marriage


Last week, another federal judge held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. In doing so, Judge Claudia Wilken (a Clinton appointee, pictured), joined Judge Joseph Tauro of Boston, Judge Jeffrey White of San Francisco, and more than twenty bankruptcy court judges in Los Angeles to hammer another nail in DOMA's coffin.

WilkenBut, this case -- Dragovich v. U.S. Department of the Treasury -- differs from the direct challenges to the discriminatory DOMA because the case is really about the exclusion of legally married same-sex couples and registered same-sex domestic partners in California from the long-term care plan of the California Public Employees Retirement System (CalPERS). 

CalPERS is the multi-billion dollar state agency that manages pension and health benefits for more than 1.7 million California public employees, retirees, and their families. Anyone who participates in CalPERS's long-term care insurance plan is given favorable federal tax treatment. Title 26, Section 7702B(f) of the U.S. Code, a provision of the federal law known as HIPAA, the Health Insurance Portability and Accountabiity Act, imports the list of permissible participants from the tax code, but specifically excludes "individual[s] ... who, for the taxable year of the taxpayer, has the same principal place of abode as the taxpayer and is a member of the taxpayer’s household." In other words, Section 7702B(f) excludes domestic partners and, therefore, CalPERS has to exclude domestic partners or it will lose its favorable federal tax treatment.

At issue in Dragovich, then, was not only the constitutionality of DOMA, which restricts all federal benefits to opposite-sex married couples, but also the constitutionality of Section 7702B(f), which specifically prevents domestic partners from participating in CalPERS long-term care plan. The most interesting point about this case is not the holding. In the course of finding that both DOMA and 7702B(f) are unconstitutional, the court proves that conservative opposition to gay marriage is not simply about the exceptionalism of the word "marriage," but more about animus toward gays in general.


Judge White and Judge Tauro have shown us how DOMA discriminates against legally married same-sex couples: it denies them access to a large swath of federal benefits that come with being married, and it denies them those benefits for no good reason.

CalpersJudge Wilken was faced with two laws that discriminated against two categories of gay persons: those that are legally married (DOMA) and those that are in registered domestic partnerships (Section 7702B). And, it is Judge Wilken's analysis of Section 7702B that pulls away the veil masking conservative animosity toward gays. To see how, consider the genesis and function of Section 7702B.

Section 7702B(f)(2) disqualifies a state-maintained plan from favorable tax treatment if it provides coverage to individuals other than those specified under its subparagraph (C). The list of eligible individuals includes state employees and former employees, their spouses, and individuals bearing a relationship to the employees or spouses which is described in subparagraphs (A) through (G) of 26 U.S.C. § 152(d)(2). But, Section 152(d)(2) has 8 subclauses (up to H), not 7 (up to G). It identifies the following individuals as “qualifying relatives” for the dependent exemption: "(A) A child or a descendant of a child; (B) A brother, sister, stepbrother, or stepsister; (C) The father or mother, or an ancestor of either;(D) A stepfather or stepmother; (E) A son or daughter of a brother or sister of the taxpayer; (F) A brother or sister of the father or mother of the taxpayer; (G) A son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law; [and] (H) An individual ... who, for the taxable year of the taxpayer, has the same principal place of abode as the taxpayer and is a member of the taxpayer’s household" (Dragovich, slip op., at 4-5).

Congress specifically excluded subsection H -- which clearly was meant to include domestic partners -- from the list of persons eligible to join CalPERS if CalPERS wanted to maintain its eligibility for tax favored status. Judge Wilken wanted to know why.

She found that Congress had a long and odious history when it came to domestic partnership law. In 1992, Washington, D.C. passed a law that established a domestic partner registry. Congress responded by passing its own law that banned all local or federal funding to implement the registry. And, the ugly debate showed Congress's true motives. Representative Clyde Holloway argued, "If there ever was an attack on the family in this country, it is [the District of Columbia’s] Domestic Partnership Act ... To me, this bill totally destroys the families of this country." In 1993, when Congress renewed the ban the first of nine times, Representative Ernst Istook argued, “Now, obviously this was passed by the District of Columbia to enable people, more than anything else, who are in a homosexual relationship to register an equivalent of a gay marriage. That is one of the reasons that this particular proposal is abhorrent, in my view" (7-8).

The debate over Washington, D.C.'s domestic partnership registry, the 1996 debate over DOMA, and the debate over HIPAA that same year all reflect this same animus toward gay persons. This evidence suggests that it is not inclusion of gay persons in the institution of marriage that conservatives find so detestable; rather, it is any recognition of any sort for any gay union. To conservatives, gay marriages are "abhorrent," and so are domestic partnerships. If that is the case, continued protestations from the National Organization for Marriage and conservative politicians that they are not antigay, just pro-traditional marriage are utterly without merit. They do not want to maintain the status quo of marriages; they want to deny gay people any sense of equal membership in society. 


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.

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    and thats what this, along with the DADT repeal, is really about - insecure prejudiced bigots who need someone to hate to feel better about themselves. it's about being angry that LGBT people are "legitimized" by society.

    "being white was all they had left"
    - Alex Haley, ROOTS

    Same thing happening here - being straight is all some people have left. without it, they're made aware that they're mediocre unexceptional people.

    the added fire we're all hearing these days is a response to our ongoing strength - bigots wants us to be scared of them. they want us to cower in fear.

    insecure gay men respond the same way in their anonymous hateful comments against "effeminate" men - it's the SAME THING; insecure projected anger that the people you want to think are "less" than you are actually stronger than you. they live Out, and you don't. so you get angry.

    just as the anti-gay bigot wants you to be scared of him - our community continuing to defy this bigotry and live Out and Visible lives is eliciting the furious last-gasps of ager from the bigots in our culture. we're not scared of them, and that in turn scares THEM. when a "queeny-fagg*t" isn't scared of a prejudiced anti-gay bigot that bigot realizes he's lost in life.

    boo hoo.

    thank you Waldman, for this terrific outline :)

    Posted by: LittleKiwi | May 30, 2012 1:14:53 PM

  2. Mr. Waldman's analysis is consistent with the behavior of Wisconsin Family Action (WFA) and its president, Julaine Appling. When advocating a constitutional ban on same-sex marriage, a few years ago, Ms Appling averred that the ban would affect only marriage; no other kind of relationships were included. Later, when the Governor instituted a domestic partners registry, Ms Appling and WFA went after it hammer and tongs; their law suit against it continues in Wisconsin courts. Clearly, there is a deeper purpose than simply "defending marriage."

    Posted by: Chuck Mielke | May 30, 2012 1:21:15 PM

  3. The road to hell is paved with good intentions.

    Posted by: Cliff | May 30, 2012 1:29:21 PM

  4. the road to hell is paved by Christians.

    Posted by: LittleKiwi | May 30, 2012 1:34:11 PM

  5. def. "animus: a usually prejudiced and often spiteful or malevolent ill will"

    it would seem that the word 'animus' keeps popping up in most all of these cases. it also is the word that Justice Kennedy used in his opinions dealing with the two lgbtq cases.

    if you add all of the heightened 'kill the gays' rhetoric that is blatantly being foisted in this country at this very moment, it will be left to the Scalia's to come up with an argument against it because most people are starting to see anti-gay for what it is - hateful and filled with fear...

    Posted by: mike/ | May 30, 2012 1:49:56 PM

  6. has anyone, at any point, ever heard ANYTHING that could remotely pass for a sane, factual, logical "reason" against LGBT being denied the legal right to marry?

    because i've never heard one.

    Posted by: LittleKiwi | May 30, 2012 2:01:40 PM

  7. Is there a place to download the full decision without subscribing to anything?

    Posted by: Steve | May 30, 2012 2:17:25 PM

  8. " has anyone, at any point, ever heard ANYTHING that could remotely pass for a sane, factual, logical "reason" against LGBT being denied the legal right to marry?"

    Never one that maintains all the straight people who can currently marry. And even those usually trip over some sub-class of LGBT people.

    Mutually infertile and straight? Good to go. Gay, not so much.
    Secular marriage for straights? Gotcha. Lesbians, buh-bye.
    Your religion supports marriage? Straight? Have a blast. Same sex couples? Hah.
    Raising kids? Breeding with a donor or surrogate? Adopting? Ditto.

    Posted by: Lymis | May 30, 2012 2:51:01 PM

  9. Exactly, Lymis. They can't form a single solid argument that holds up to intellectual scrutiny. NOM's basic argument was "bb-b-but...they're GAYS!!!"
    uh, ok.

    I'd have to support them if they wanted to make marriage solely about procreation granted that the "definition" excludes infertile heterosexuals, post-menopausal women and sterile men, and that fertility tests would be administered before a license is granted. annul the marriages that didn't result in biological children. annul the marriages of parents who used a surrogate or adopted.

    address the reality that LGBT couples that can, and do, have children and that denying the parents the right to marry puts the CHILDREN at a disadvantage.

    my church supports marriage for gay couples. another church stopping us would be like jews stopping gentiles from eating bacon.

    this is why i get puzzled when people worry about "how we're going to win this" - the only way we can lose is if the US Justice System is corrupt to the core. is it?

    Posted by: LittleKiwi | May 30, 2012 2:57:38 PM

  10. @Lymus: I'd add serial monogamists (those who marry over and over);
    convicted murderers on death row (marriage A-ok!);
    and in many states: marriage between an adult and a minor <16 yrs. continue to be legal.

    So far, I haven't heard anyone mount a campaign to make divorce illegal in order to save "the institution of marriage". Do you suppose that "covenant" marriages for everyone could some day become the law?? Doubtful!

    Posted by: Just sayin' | May 30, 2012 3:50:48 PM

  11. Thank you once again Ari for a concise and well thought out summary. How many judges, conservative and liberal, must come to the same conclusion before something is done? If the SCOTUS doesn't get this right it will show itself for the political lapdogs many fear it has become. Not only the 30(?) federal judges that have now sided with marriage equality, but how many state courts, lower and supreme, have also come to the same decision? Over and over, state and federal judges find the same animus, the same constitutional illegality of denying us our rights.

    They keep mentioning "in 32 states the voters have decided". What did they decide exactly? To rewrite their constitutions that spoke so clearly to the injustice they were perpetrating. They hate us so much that they are willing to change the constitution. If that's not animus I don't know what is.

    Posted by: Michaelandfred | May 30, 2012 3:50:55 PM

  12. voters would have decided against Integration and the abolition of slavery, too. doesn't mean their opposition is valid, it just means there are too many people with empty hearts and empty heads.

    Posted by: LittleKiwi | May 30, 2012 3:55:50 PM

  13. In Michigan, once the same sex marriage ban amendment was passed, the Republicans immediately turned against domestic partnerships for gay people. Here in Arizona, the governor attempted to take away health benefits for the partners and children of homosexual state employees. It's all about appeasing the fundamentalist Christians and their hatred of LGBT folks.

    Posted by: jht | May 30, 2012 5:09:31 PM

  14. @ TOWLEROAD: Having Ari Ezra Waldman as a columnist is one of the smartest things this blog ever did. Real, actual legal insight instead of punditry or snark.


    And yes, I agree -- there is NOT ONE logical, non-hypocritical argument against marriage equality. I've been married 9 years and heard them all.

    Even the "tradition" argument falls flat unless conservative women are willing once again to be sold as chattel, own no property, and be raped by their husbands until they produce a male heir.... oh, of course, not *those* traditions.

    Posted by: strepsi | May 30, 2012 5:38:20 PM

  15. Oh goody, another ruling against DOMA. So we've stabbed Goliath in the toe again and he's really, really bleeding this time, huh?

    Posted by: bierce | May 30, 2012 6:54:35 PM

  16. Seriously, I love Ari. Fantastic. Always.

    Posted by: Derek in Madison | May 30, 2012 7:53:14 PM

  17. Please stop saying that these rulings against DOMA are nails in its coffin. The metaphor means that the thing is DEAD and the nails are just driving home the point. Gleefully maybe. The thing is dead. Yay!

    DOMA IS NOT DEAD. You know this. So stop suggesting that it is. It is very much alive and hurting people. You know this.

    If you want a colorful metaphor, fine. FInd one that makes sense. Maybe these rulings are yanking the supports from the edifice of hate. Yay. But the Supreme Court at any time can come in and repour the foundation with concrete.

    Posted by: Glenn I | May 31, 2012 1:04:07 AM

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