DOMA Fail; Citizens United Next?

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It's an exciting day for people who like civil liberties and who cheer for David over Goliath in the continuing imbalance of electoral power.

The United States Court of Appeals for the First Circuit, the federal appeals court in Boston, ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. DOMA is a law passed by Congress in 1996 as then President Clinton was seeking re-election.  Clinton has since expressed regret about signing DOMA.  DOMA defined marriage as between one man and one woman.  

Additionally, retired SCOTUS Justice John Paul Stevens predicted the eventual demise of the Citizens United decision by the U.S. Supreme Court.

More about DOMA and Citizens United below the jump.The ruling in the federal appeals court does not strike down all of DOMA.  Rather, it held that Section 3 of DOMA unconstitutionally discriminated against same-sex couples by denying them the same federal benefits which are available to heterosexual couples.

As the appeals court stated early in its unanimous opinion:

“Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.”

As the court noted, while a state could actually permit same-sex marriage, same-sex couples could face unpalatable choices and consequences based on their status.

“Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.”

This landmark appeal arose from two companion cases in Massachusetts – one in which surviving spouses in same-sex couples sought federal benefits, and one in which the state sought to ensure that it continued to receive federal funding for its programs, such as veterans' cemeteries and its state Medicaid program, where the inclusion of same-sex couples under Massachusetts law would render Massachusetts non-compliant and ineligible for federal dollars because of DOMA.

The lower court struck down Section 3 of DOMA in both of these cases and the appeals court today upheld their rulings.  Not surprisingly, the lower court found that Section 3 of DOMA violated the Equal Protection Clause of the Constitution.  Interestingly, though, the lower court did find that Section 3 of DOMA violated the Spending Clause and the Tenth Amendment.  The Spending Clause is actually part of the Taxing and Spending Clause, is found at Article I, Section 8, Clause 1 of the United States Constitution, and reads thus:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Tenth Amendment goes to states' rights and reads thus:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

What makes this interesting is not necessarily the legal reasoning, but how the legal reasoning would make seemingly strange bedfellows out of the current political landscape.  If the legal reasoning of the federal trial court were to withstand scrutiny at the level of the U.S. Supreme Court – which many speculate is the case's next stop – this would take the definition of marriage out of the hands of the federal government – or at least, severely curtail the federal government's ability to weigh in on the issue.  This would affect both sides of the debate.  It would leave the definition of marriage, and the possibility of gay marriage squarely in the bailiwick of state legislators.  On the one hand, this would encourage gay marriage advocates as it would bar federal lawmakers from banning gay marriage.  On the other hand, it would embolden gay marriage opponents to the frustration of gay marriage advocates as there would be potentially 50 different definitions of marriage – some helpful to gay marriage advocates, and others less likely so. At that point, the best recourse at the federal level for gay marriage advocates would be argument at the U.S. Supreme Court to strike down restrictive state laws as unconstitutional on other grounds.  

The appeals court departed somewhat from the lower court's reasoning in that it did not necessarily apply the strict scrutiny standard found in deciding Equal Protection cases, but it did proceed with a heightened scrutiny of sorts for groups that are affected by legislation and which are historically disadvantaged or unpopular.  Moreover, rather than rely on the state's receipt of federal funding for programs such as Medicaid, the court focused on how federal regulation affected a state's choices in making its own laws concerning marriage.  The court ruled that there was no permissible federal interest supporting the law.  

Today's opinion can be viewed here.

Notably, the court disapproved of one of DOMA's justifications, “moral disapproval” of same-sex marriage, relying on the U.S. Supreme Court's opinion striking down sodomy laws in Lawrence v. Texas, 539 U.S. 558 (2003), an opinion founded on the reasoning of Justice John Paul Stevens, who is our next story.

Citizens United to Fall?

Several media outlets are reporting that retired Justice John Paul Stevens, in a speech yesterday predicted the eventual demise of the Citizens United decision by the U.S. Supreme Court.  Citizens United is widely – and justifiably – scapegoated for the massive influx of corporate and/or secretive money into elections and the rise of SuperPACs.  

In an article in The New York Times yesterday, Adam Liptak reported that in a speech at the University of Arkansas at Little Rock, Stevens stated that the court has boxed itself into a logical corner:

“Justice Stevens questioned whether the majority was prepared to apply one of the principles it had announced in the decision in other contexts. In striking down part of the 2002 McCain-Feingold campaign finance law, the majority said that “the First Amendment generally prohibits the suppression of political speech based on the speaker's identity.”

But Justice Stevens said the court has sustained laws that did just that in other settings.”

Justice Stevens had written a blistering dissent to the Citizens United opinion.  He had characterized the majority's opinion as a “dramatic break from our past.”  He criticized the majority for not deciding the case on narrower grounds where such was possible and even advocated by the parties before the Court.   And he took exception to the majority's  disregard for stare decisis, noting the “role of corporations and unions-and the narrow interests they represent-vis-à-vis the role of political parties-and the broad coalitions they represent-in determining who will hold public office.” He wrote:

“At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

The speech may be viewed here.


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