Federal Judge: DOMA is Unconstitutional; Congress acting "like an Ostrich"

In a brilliantly-crafted decision, Federal District Court Judge Jeffrey S. White of the Northern District of California has found DOMA Unconstitutional. His decision, while echoing and supporting a similar ruling by Massachusetts District Court Judge Joseph Tauro, goes even further than the July 2010 Massachusetts decision did.

The decision specificially declares that laws that discriminate on the basis of sexual orientation must be reviewed with the same scrutiny as laws that discriminate on the basis of race; trashed every arguement that Congress put forth in the passage of DOMA (including stating that "Congress cannot, like an ostrich, merely bury its head in the sand"); denied the right of Congress to impose its own version of 'morality' or "religion" on the issue; and compared DOMA to efforts to prevent interracial marriage.

And for icing on the cake, Judge White closed the decision by quoting U. S. Supreme Court Justice Anthony Kennedy, seen by most Court-watchers as the moderate, key swing vote when this issue eventually gets to the Supreme Court.

The 43-page decision has been reduced to its barest elements below and is worth a read.


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
KAREN GOLINSKI, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN BERRY, Director
of the United States Office of Personnel Management, in his official capacity, Defendants.

BACKGROUND

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit.

Ms. Golinski has been partners with Amy Cunninghis for over twenty years...On August 21, 2008, they were legally married under the laws of the State of California. Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women.

Defense of Marriage Act.

This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski...Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.

In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite sex who is a husband or a wife.”

The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” ...Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Congress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare.

Equal Protection Analysis and Standard of Review.

The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) . This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011). It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.

In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. Laws that do not burden a protected class or infringe on a constitutionally
protected fundamental right are subject to rational basis review. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest.

[Bloggers legal note: The above is a critical Legal issue. If a law is passed that discriminates against a group considered a 'suspect class' such as race, the government must prove that the discriminatory law is "substantially related" to an "important government objective." If it discrimninates against other groups, it only has to prove that there is a rational basis for the law, and that it "furthers a legitimate government interest."]

Level of Scrutiny

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples.

Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasisuspect class entitled to heightened scrutiny, the Court must look at various factors. The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
power of the subject class.

The Question of Level of Scrutiny is Still Open.

The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect). …No federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.

1. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination…

2. Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society…

3. The Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

4. Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny.

[Blogger's legal note: in other words, sexual orientation must be seen similar to race or national origin. Heightened review of the law applies, and the government must prove that the discrimination is "substanbtially related to an important government objective."]

Application of Heightened Scrutiny to Justifications Proffered for DOMA.

Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.”

[Blogger's Legal Note: Congress elucidated four reasons for the passage of DOMA, as described below]

1. The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing…Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does nothing to encourage or discourage opposite-sex couples from having children within marriage. Accordingly, the Court finds that the first proffered reason for the passage of DOMA does not provide a justification that is substantially related to an important governmental objective.

2. The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage…[T]he ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA…Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. Accordingly, the Court does not find that the second proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

3. The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny…The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The
obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Accordingly, the Court does not find that the third proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

4. The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc[ally.] In addition, the preservation of government resources cannot, as a matter of
law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 U.S. at 227, 229…Accordingly, the Court does not find that the fourth proffered reason for the passage ofDOMA provides a justification that is substantially related to an important governmental objective.

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

[Parallel with Anti-Miscegenation Laws]

Proponents similarly argued that the long-standing tradition of the separation of the races provided justification for prohibiting interracial marriage. The lower court in Loving v. Virginia found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will,
flaunted a long history of tradition and, at its core, endangered the institution of marriage. However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee.

…[T]his Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law. Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring)


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Can the President refuse to defend a law?

After it was announced that the Obama Administration would no longer defend DOMA in court, Republican Massachusetts Senator Scott Brown had the following comment today:

"...We can't have presidents deciding what laws are constitutional and what laws are not. That is a function of the judicial branch, not the executive."

Brown is echoing what many Republicans have said. He is also betraying his own ignorance of the American political system. As a sitting United States Senator, that is rather sad.

In reality, *no* branch of government has been designated the specific function of declaring laws unconstitutional - not even the Judiciary. While it is often said the Judiciary fills that role, the fact is that nowhere does the US Constitution authorize the Supreme Court to do so. The seed of that 'authority' was planted in 1803, when the Court decided in Marbury vs. Madison that a Congressionally-enacted law was invalid due to its unconstitutionality.

However, the development of that authority within the Judiciary does not mean that other branches of government are free to ignore issues on Constitutionality. When the President takes his oath of office, he specifically swears the following:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President takes an oath to defend the US Constitution. He is not defending the Constitution if he or his administration are trying to preserve laws which violate that same Constitution.

The error Scott Brown makes - and one which many critics of Obama's decision are making - is the adoption of a simplistic view of government that ignores the overriding importance of the concept of the separation and balance of powers between the three branches of government.

On a simple level, it is often said that the Legislature "makes" the laws, and the Executive "carries out the laws." But that view skews the balance of power and makes it appear as if the President is merely a servant or administrator to Congress, whose only function is to do as he is told. Such a view sees the Legislature as superior to the President, and able to order him about to carry out their orders.

That is NOT how the structure of our national government was envisioned. Rather, it was conceived as being comprised of three separate branches, co-equal, each providing checks and balances to the others...and deliberately inefficient and inexact in the exercise of its powers. The ability of one branch to "check" another branch is one of the most basic features of the American System.

In 1788, within months of the adoption of the Constitution, James Madison, quoting the great political philosopher Baron de Montesquieu, wrote in Federalist Paper No. 47,

"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."

In other words, when these two branches 'merge' - or when one branch of government has the authority both to create laws AND force them to be carried out - tyranny may result.

It IS the President's responsibility to defend the Constitution...just as it is the Legislature's responsibility, AND the Judiciary's responsibility. No branch of government is 'superior,' and none is merely a servant to carry out the wishes of the other.

We see this all the time in less controversial settings:

Congress passes a law, and the Supreme Court refuses to convict someone under it.

The President authorizes a program, and Congress refuses to authorize spending to carry it out.

A Legislature passes laws against smoking marijuana, and the Executive branch (Mayors, Police Departments) choose NOT to enforce that law during a huge rock concert.

A president nominates Judges and Cabinet Appointees, and the Senate refuses to vote them up or down.

This happens on a regular basis. There is nothing different in the present case. Congress passed a law, DOMA, that is clearly Unconstitutional on multiple levels. Several Courts have already held that DOMA is Unconstitutional. The President is merely carrying out his responsibilities under the US Constitution to defend that document against laws which violate both its letter and spirit. It is a messy system, but it is messy on purpose...and any effort to insist that the President merely do as Congress tells him is certainly as un-American as it gets.

BREAKING: Obama will not defend DOMA

US Attorney General Eric Holder has announced that the US will no longer defend Sec 3of DOMA (“Defense of Marriage Act”) in court. This section prevented the Federal Government (and is agencies, such as the IRS) from recognizing the legitimacy of same-sex marriages validly performed in the 5 states and District of Columbia where such marriages are legal, and resulted in tax and survivorship inequities. This means that for all practical purposes, the recent rulings by Federal Courts in the northeast holding DOMA to be an unconstitutional overreach of federal authority into state matters will stand.

From Holders statement:

“...After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation...”

2011: The Year for GLBT Federal Income Tax Civil Disobedience

For as long as there has been a federal income tax (1917), the federal government has asked taxpayers to indicate their marital status on their tax forms. Taxpayers need not prove their status, they need only swear that all the information contained on the form is true.

And so, come April 15, I, along with other gay and lesbian couples in New Hampshire and other states permitting same-sex marriage, will have a choice: we can check off "married" on page 1 of our 1040, and sign the bottom of page 2 in good conscience that our return is truthful, or we can call ourselves 'single,' and sign that statement, knowing that calling ourselves 'single' would be a patent lie under state law.

The choice, of course, has both legal and financial consequences: two people filing as married pay far less in federal income tax than those same two people filing as single, especially if there is a large income disparity between them. It is even worse when one spouse adds the other to their health insurance: gay and lesbian couples get taxed on "imputed income," the amount of the "additional income" that the federal government pretends we have based on the value of our spouse's health insurance policy. For an average middle-class working couple, this amounts to more than $3,000 annually in federal income tax.

The problem stems from "DOMA," the so-called "Defense of Marriage Act," a 1996 law that privides a federal government definition of marriage as only between a man and a woman.

Constitutionally, it is not the federal government's jurisdiction to define marriage. There is no federal Constitutional provision permitting a federal law in this arena. Marriage laws are very specifically creatures of state jurisdiction. In Rhode Island, first cousins can marry; In Illinois they can as long as they can not bear children; in Oregon they can if one was adopted; while in New Hampshire and Pennsylvania there is no first-cousin marriage permitted at all. The rules for who can and who can not get married are state-specific, and the federal government has always accepted the definitions of the states, even though they differed from state to state. By imposing DOMA, the federal government has involved itself in a sphere that is clearly not within it's own jurisdiction, but, under the 10th Amendment, "reserved to the states or to the people." At least one federal judge, in a case brought by the Commonwealth of Massachusetts, has ruled that DOMA is Unconstitutional for precisely the reasons we have been arguing in this blog.

And so, I am choosing to engage in an act of civil disobedience under federal law, because this year I will choose to answer my marital status honestly under state law, and I am asking other married gay and lesbian couples to join me.

One can only wonder how the Feds will choose to pursue this:

Nowhere on the federal income tax form do they request 'gender'.

Millions of Americans file Joint Income Tax returns annually.

Any effort by the IRS to root through millions of tax returns and try to determine genders would be a cost-prohibitive nightmare for them.

If every gay married couple that gets 'caught' files objections with the IRS and then takes them to court, citing the Unconstitutionality of DOMA, it is likely that the IRS court calendar with result in a logjam...and time is on our side as all the existing suits wind their way through the courts.

So, on April 15, I will be checking "married," and I will be signing a sworn oath that I have told the truth.

Let the feds argue in court that I was wrong for so doing. And while I will do it alone if necessary, I invite other couples in our situation to join us.

Proposition 8 Overturned: Supreme Court Battle Looms

At 4:50 pm EST this afternoon, Federal District Court Judge Vaughan R. Walker (District of Northern California)overturned California's Proposition 8, setting the stage for an eventual national showdown at the US Supreme Court.

California courts had earlier required Marriage Equality, and couples began to marry under the decision, but opponents gathered enough signatures to force a referendum on the issue popularly known as "Proposition 8." (Law-making by 'popular vote' is a traditional lawmaking route in the west of the United States, but is little used elsewhere. During the last generation, then-Governor Ronald Reagan opposed a ballot initiative supported by singer Anita Bryant that would have baned gays from teaching. The campaign propelled San Francisco mayor Harvey Milk into the national limelight as he pleaded with GLBT men and women to leave the closets and be counted among their neighbors and families. That ballot initiative ultimately failed.)

But this time, after more than 80 million dollars were spent campaigning, proponents of Prop 8 won by a vote of 52-48%, and Marriage Equality immediately ceased in California 5 months after it started. Two attorneys, David Boies and Theodore Olson(one a liberal Democrat and one a conservative Republican) then brought this suit on behalf of two gay couples and challenged the referendum vote in Federal Court on the basis of the 14th Amendment to the U. S Constitution, which requires the Equal Protection of Laws for all citizens in a case more properly known as Perry et al v. Schwarzneggar. Same-sex marriage had never been challenged on these Constitutional grounds before, and many gay-rights groups expressed everything from delight to nervousness to outright hostility at pursuing this avenue of attack.

During the trial, opponents of gay marriage saw their case fall apart, as 'expert' witnesses failed to show up or to provide evidence of their 'expertise,' while Boies and Olson brought in a parade of experts in marriage, family law, and psychology to show the discriminatory nature of Prop 8 and the campaign that surrounded it.

In the end, Judge Walker wrote:

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment...Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation...Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.“


This means that there are now TWO Federal Court rulings citing three different Constitutional provisions chipping away at systematic discrimination against gays and lesbians: This Prop 8 ruling, which places sexual orientation under both the equal protection and Due Process clauses of the 14th amendment, and Judge Tauro's decision in Massachusetts last month, which held that the so-called federal "Defense of Marriage Act" ("DOMA"), which prohibits the federal government from acknowledging the validity of same-sex marriages performed in the states where it is legal, was also unconstitutional under the 10th Amendment guaranteeing State's Rights in family issues.

There is little doubt that both of the California and Massachusetts decisions are headed to Appellate Circuit Courts, and eventually to the Supreme Court, where a decision of national import is likely to rest on the shoulders of the Courts only centrist, Justice Kennedy.

DOMA, Prop 8 and Appeals: Outcomes and Next Steps

Yesterday's holding by a Federal District Court Judge that DOMA is Unconstitutional is a big step...but not the end. This was a decision issued by a federal judge on a federal law, but only in a "local" (Massachusetts) case. The question remains of how we turn a Federal District Court holding into a national holding. It would be very unusual for the entire federal government to just roll over and say, "OK, we gotta change now, Congress was wrong on this" as a result of a single District Court holding.

In the best of all worlds, the decision would need to be appealed to (and affirmed by) the Appellate level (and maybe moved on certiorari to the Supreme Court) strictly on the 10th Amendement aspect of the holding, to create a national holding. The 10th Amendment specifically grants to the States the right to legislate in those areas not given Federal jurisdiction, and this was the legal basis for yesterday's decision: States, not the Federal Government, are the entities with authority to define Marriage. DOMA attempted to allow the Federal Government to ignore State Marriage laws that recognize same-sex unions.

Meanwhile, on the West Coast, another decision looms. California's Proposition 8 overturned same-sex marriage in that state, and the Proposition has been challenged on other federal grounds: this one, however, is not based on "State's Rights," but on the Equal Protection Clause of the 14th Amendment to the US Constitution. The specific holding of that trial - which could be released any day - may very well provide a second Federal ruling requiring clarification or appeal...which could accelerate the process.

I expect that, if appealed, the two cases would be joined at the Supreme Court.

Back to yesterday's DOMA ruling: This puts Obama in a very difficult position. On one hand, he could decide to support the Massachusetts District Court decision nationwide; this would be highly unusual, maybe even unprecedented. District Court level Judges issue rulings all the time, often contradictory with each other and almost never with national application overnight.

On the other hand, Obama's Justice Department could Appeal the Massachusetts ruling, thus angering the less-than-critically-thinking gay blogosphere that understands that it *won* at the District Court level.

Whatever Obama decides to do, he must articulate his reasoning WELL both publicly and "within" party and GLBT leadership so its clear what is going on.

BREAKING NEWS: Federal Court overturns DOMA!

From the Boston Globe:

Judge declares US gay-marriage ban is unconstitutional
July 8, 2010 05:21 PM
By Michael Levenson, Globe Staff

A federal district court judge in Boston today struck down a 1996 federal law that defines marriage as a union exclusively between a man and a woman, according to the office of state Attorney General Martha Coakley.

Judge Joseph L. Tauro, in a 36-page ruling that touched on the history of marriage laws, found that the federal Defense of Marriage Act violates Massachusetts’ right to recognize same-sex unions.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment.”

We have argued in this blog strenuously and continuously that the Defense of Marriage Act is a violation of the 10th Amendment of the US Constitution. Family law, and the laws surrounding eligibility for Marriage, have ALWAYS been issues reserved to STATE governments, not the federal government.

Some states permit cousins to marry, while others do not; the federal government has historically and routinely accepted each individual state's declaration of what constitutes a valid marriage, even if that changes from state to state. DOMA was a clear violation of this principle...it also meant that legimately married same-sex couples were forced to lie on their Federal Income Tax, were ineligible for federal survivors benefits, and had to pay additional income tax if they places their spouse on their health insurance.

Ironically, conservatives - who normally support 10th Amendment States Rights arguements - ignored this violation....While Liberals - such as the regular posters on blogs such as Joe.My.God...constantly called me a "Tea-Partier" and "Right-Winger" because I used a 10th Amendment arguement against DOMA.

Well, Massachusetts Attorney General Martha Coakley made this arguement, and won her case in district court.

To be certain, this is not the end of the issue: this was a ruling at the Federal District Court level, which opens up the possibilities of appeals and wrangling before the Appeallate Court and even the US Supreme Court itself if the US Justice Department chooses to pursue this.

But time is in the side of Justice.

Fiscal Conservatives: Ending DOMA is a responsible step

Robert and Carl* are a gay couple who have been together for several years. They live in a state that permits same-sex marriage, and recently tied the knot in a Church ceremony. Like many other married couples, they have established a stable home and are active members of their community. Carl is healthy but lives with a manageable medical condition. Like approximately 1.1 million other Americans, Carl is HIV positive.

Today, HIV positive people are living long, normal, healthy lives…as long as they receive proper medical care. Highly Active Anti-Retroviral Therapy (HAART), a combination of three medications, is now the standard treatment to battle HIV. While quite effective one of the major downsides of treatment is cost. Carl’s three medications run about $2,200 per month…a figure that is quite typical. This, of course, does not include approximately six blood tests and physicians appointments per year, bringing his treatment costs to about $3,000 per month.

The US Congress recognized the steep cost of treatment when they reauthorized the Ryan White Care Act in 2009 by a vote of 408-9. This Act authorizes the expenditure of over $2 billion annually to assist with HIV outreach and treatment. It is the ‘payer of last resort,’ and income guidelines are applied towards recipients, but still it is estimated that some 30% of HIV positive individuals receive some assistance through this program.

More comprehensive coverage, of course, is available through private insurance. More than 25% of Americans work for an employer that offers domestic partner benefits; 51% percent of Fortune 500 companies offer domestic partner health benefits; and 37% of all Americans live in states where some legal protection of same-sex partner arrangements exist (marriage, civil unions, or domestic partner benefits.)

Back to Robert and Carl.

Robert has a full-time, secure job, and both he and his employer contribute towards Roberts’ health insurance. When Robert married Carl, they looked forward to Carl’s being added to Roberts policy as a spouse, thus providing not only coverage for Carl’s HIV medicine, but for the entire range of normal health care for which the typical American might visit the doctor or the hospital. Robert, who had been married before, had already had his children (and formerly, an ex-wife), on his family policy.

Enter the federal Defense of Marriage Act (“DOMA”).

Under DOMA, the federal government agencies are prohibited from recognizing the validity of same-sex unions of any kind, even when they are authorized under state law. This is a significant change to federal-state relationships, since Family Law issues have always been decided at the state level. As a result, in Rhode Island, Alabama, and Alaska first cousins may legally marry, while in Louisiana, New Hampshire, and Pennsylvania such marriages are illegal. The Federal government dos not take a stand on this issue: they accept first-cousin marriages from Alaska as legal, but would reject the validity of first-cousin marriages illegally performed in Pennsylvania. In other words, the federal government normally accepts the states’ definition of marriage as authoritative in the matter of marriage.

Under DOMA, however, the federal government will not consider a same-sex marriage, validly performed under state law, as a valid marriage under federal law. And that has serious federal income tax implications.

When Robert added Carl, his lawful spouse, to his family health insurance, his HR office informed him that since Carl was not a spouse under federal law, Robert would have to pay taxes on “imputed income” to Carl. “Imputed Income is the addition of the value of cash/non-cash compensation to an employees’ taxable wages,” and both federal income taxes and FICA (Social Security) taxes are assessed against the value of this imputed income.

Robert was shocked when he saw his next paycheck. In order to cover the imputed value of providing health insurance to his spouse – an action that is never applied to an opposite-sex spouse – his employer had withheld an additional $450/month from his paycheck.

As a middle-class income-earner, the loss of an additional $5,400 annually was too much to absorb. Robert removed Carl from his health insurance policy, and Carl applied for – and received – HIV coverage under the Ryan White Act.

The sad reality is that without DOMA, Carl could have been added to a private insurance policy just as any other spouse could be, without the punishing effect of federal taxes associated with imputed income.

Because of DOMA, American taxpayers will now pay a minimum of $36,000 annually for Carl. And this is just a single instance of a pattern that is replicated across the nation.

There are over 1.1 million HIV positive Americans. 30% receive assistance through the Two Billion dollar plus Ryan White Care Act. Close to half might currently or eventually be eligible for private insurance coverage through spouses, civil unions, domestic partnership arrangements, or company policies.

Fiscal Conservatives, take note: one of the single most significant actions you could take to reduce spending and taxpayer burden, while improving health care provisions for hundreds of thousands of Americans, is to repeal the provision of DOMA that prohibits federal recognition of valid state marriages.

The only real question is whether you believe that punishing homosexual couples is a more important public policy goal.

*Robert and Carl are not their real names, but they are real people and the dollar figures and story are entirely accurate.
--------------------------

SOURCES:

CDC 'HIV Prevalence Estimates -- United States, 2006' MMWR 57(39), 3 October 2008
http://health.msn.com/health-topics/articlepage.aspx?cp-documentid=100057404
http://aids.about.com/od/hivmedicationfactsheets/a/drugcost.htm
AIDS Drug Assistance Programs (ADAPs) - Henry J. Kaiser Family Foundation Fact Sheet
U.S. Census Bureau. “County Business Patterns: 2000.”
Human Rights Campaign, “State of the Workplace: 2006.”
http://www.haasjr.org/index.php
http://definitions.uslegal.com/i/imputed-income/