Judge Rules Section 3 of the Defense of Marriage Act Unconstitutional

In what has been hailed as a landmark decision, a federal judge on Thursday twice ruled that Section 3 of the 1996 Defense of Marriage Act (DOMA) is unconstitutional in separate cases brought by the Commonwealth of Massachusetts and married gay and lesbian couples from the state.

The Two Lawsuits that Brought DOMA Section 3 into Question
The two cases, Commonwealth of Massachusetts v. Health and Human Services and Gill et al. v. Office of Personnel Management saw Federal District Court Judge Joseph Tauro examine how the federal ban on the government recognizing same-sex marriages impacts state autonomy and the rights of gay and lesbian couples to be treated the same as their heterosexual counterparts.

Equal marriage rights for same-sex couples were granted in Massachusetts in 2005. Earlier this year, Massachusetts Attorney General Martha Coakley announced that the state would be suing the United States Department of Health and Human Services over Section 3 of DOMA.

In essence, DOMA and in particular Section 3 of the Defense of Marriage Act mandates that the government can only recognize the word “marriage” as being a legal union between one man and one woman, and from that also reserves terms like “spouse” and “husband” and “wife”. As such, the federal benefits of marriage are denied same-sex couples. 

The State of Massachusetts challenge claimed that Section 3 of DOMA violates the Tenth Amendment of the U.S. Constitution because it oversteps the federal government’s power and infringes state sovereignty by denying the state the ability to fully recognize marriage equality and confer all the rights and benefits of marriage, such as in granting Medicaid spousal benefits, therein forcing the state to discriminate between same-sex married couples and heterosexual married couples.

The second case, Gill v. Office of Personnel Management, was brought on behalf of seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts. They were represented by the LGBT legal group Gay and Lesbian Advocates and Defenders (GLAD). GLAD alleged that DOMA violated the equal protections clause of the Fifth Amendment because it subjected same-sex couples to higher tax rates and unfair penalties due to the fact that their marriages were discriminated against by the government and that this left them legally vulnerable when it came to survivor benefits and spousal care. 

Judge Tauro Strikes Down Section 3 of the Defense of Marriage Act
In Commonwealth of Massachusetts v. Health and Human Services Tauro found in a summary judgment that, in passing DOMA, Congress had violated the Tenth Amendment to the U.S. Constitution because it had effectively overruled state sovereignty in defining what couples are viable for marriage and marriage benefits.

In the second case, Gill v. Office of Personnel Management, the Court ruled that DOMA, in this regard, did indeed violate equal protection as embodied in the Due Process Clause of the Fifth Amendment.

To be clear, and this applies to both cases, the legal challenges in question were brought on behalf of couples who are already married. This is not the same as the California Proposition 8 case currently awaiting a decision from Judge Vaughn Walker in which it was argued that a constitutional ban on same-sex marriage created through a voter led initiative violates the rights of gay and lesbian couples by preventing them from getting married and relegating them to a second class. While the two definitely intersect on this point, they are also quite distinct and should not be confused.

In both cases the Court was urged to use heightened scrutiny in examining the constitutionality of DOMA, however Tauro declined because, as stated in his opinion on Gill v. OPM:

…DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

The judge quickly tore through how previous arguments for DOMA have been demolished, including the concept that DOMA protects “traditional” marriage:

…Denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.

As to the idea that DOMA allowed consistency while individual states settled the issue of same-sex marriage, Tauro said:

Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.”

As to the defense that there exists a government interest in maintaining the “status quo” of marriage, Tauro took great exception. He refuted the argument and actually turned it on its head by saying that DOMA actually went against the “status quo”:

Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter.

When it was argued that the federal government should be capable of defining marriage as it sees fit for the purposes of ascribing benefits and tax breaks, Tauro effectively said that the government’s power in this area is not limitless and that DOMA was a dramatic overreach. Notably, Tauro also tackled just how pervasive DOMA really is and categorically stated in the Gill v. OPM opinion that the true motivation behind DOMA was animus toward same-sex couples:

The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits. For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization, as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty…

It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve, this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.

In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].”146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,”147 this court finds that DOMA lacks a rational basis to support it.

It is expected that this decision will, in due course, be appealed to the United States Supreme Court. Should the Obama Administration file for such an appeal, which would be a matter of usual course, the next stop will be the Court of Appeals. A request for a motion to stay this decision until the higher courts have ruled will almost certainly be made in the coming days if the Department of Justice decides to appeal.

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Photo used under the Creative Commons Attribution License, with thanks to Marlith.


ERIKA S1 months ago


ERIKA S1 months ago


Duane B.
.4 years ago

Thank you for sharing.

Christopher M.
Christopher M4 years ago

DOMA just reached the Supreme Court. I hope a free country under law becomes a free country under law. This is not a theocracy.

roberto c.
robert m6 years ago

I applaud to the Judge yes for equal rights NO to discrimination....

Philippa P.
Philippa P6 years ago

Thanks for the articles.

Lorelai Ross
Lorelai Ross6 years ago

When one group of people is not accorded their full civil rights, then all of us are in danger of losing our civil rights. It is a very simple equation. if it is 'okay' to fudge on that equality thing for someeee people, it allstarts to slip and it does not take long before everyone is wondering where their rights have gone.

Talking about 'morals' is simply ofuscation of the matter. Morality is relative. Most people operate on the same basic set of morals, regardless or their religion or political dispostions, The big stuff (it is wrong to lie, cheat, steal, and kill people, it is wrong to abuse others) we can all essentially agree on. Whether two same sex epeople love each other and want to spend their lives in a recognized union of marriage, becasue everyone welse is allowed that same priviledge, has no bearing on morals. Except maybe the ones of the people who are spouting off about it being 'wrong'.

Lorelai Ross
Lorelai Ross6 years ago

Hooray for judge Tauro!!

Bobbie T.
Bobbie T6 years ago

Byron...been down the Appalachian Trail recentley? Did you meat up with the Gov of SC? The Christian, moral leader with the girlfriend in SA???? Or Maybe you're friends with Jimmy Swaggart, or Baker, or how many other MORAL, CHRISTIAN, I'M Holier Than Thou, rightwing nut jobs? I am waiting for the US supreme court to follow the Mass. court ruling and END DOMA NOW. Live your life according to your beliefs, but please allow others to do the same. It has no bearing on my life if gay people are afforded the SAME rights as I have and that includes marriage. And equal pay, and insurance benefits, and suvivor benefits, etc.

Lisa W.
Lisa W.6 years ago

Welcome to 1977, Suzan. I think that's when Anita Bryant was spouting that Adam & Steve line. It wasn't clever then and it isn't now. What I don't get is how you quite rightly slammed SF for a soft-drink ban that might imperil a minority and yet you are happy to significantly squash the civil rights of another minority.