West Coast DOMA Litigation Takes Off…

With a motion for class certification having been filed and scheduled for hearing on February 24, and having just survived a motion to dismiss by the federal defendants, six Californians are poised to strike a heavy blow at the federal Defense of Marriage Act, Section 3, which mandates that only different-sex unions be recognized as marriages for all purposes of federal law.  U.S. District Judge Claudia Wilken's January 18 decision on the motion in Dragovich v. U.S. Department of the Treasury, 2011 Westlaw 175502 (N.D.Cal.) appears to forecast an easy victory for the plaintiffs at the trial level.

Lori Rifkin of the Legal Aid Society-Employment Law Center in San Francisco represents plaintiff couples Michael Dragovich and Michael Gaitley, Elizabeth Litteral and Patricia Fitzsimmons, and Carolyn and Cheryl Light.  They filed suit on behalf of themselves and all others similarly situated.

The lawsuit was filed by three California public employees and their same-sex spouses.  These couples were registered as California domestic partners and then all married in 2008 during the "window period" when marriage was available prior to the passage of Proposition 8.  The California Supreme Court subsequently ruled that such "window period" marriages remained valid.

After Michael Dragovich married Michael Gaitley, he inquired about signing up Gaitley for coverage under the state-maintained plan providing long-term care insurance for state employees and their families.  The program administrators refused to send him an application, stating that the plan would lose its favorable federal tax status if they were to extend eligibility to somebody who was not recognized as a spouse under federal law.  They relied on Section 7702B(f) of the federal Internal Revenue Code, which specifies in detail the family relationships that will qualify.  Domestic partners are not listed.  Spouses are, but the IRC must be construed in tandem with the Defense of Marriage Act (DOMA), which limits the definition of spouse under federal law.

Dragovich and his husband, as well as two lesbian married couples who are interested in participating in the program, joined as plaintiffs, suing both the state administrators of the program and the U.S. Treasury and the Internal Revenue Service, seeking a declaratory judgment that failure to allow them to participate violates the 5th and 14th Amendments.  The federal defendants moved to dismiss based on alternative grounds of standing and failure to state a claim.

The standing argument contends that none of the plaintiffs actually applied and was turned down for the plan, but this is a totally spurious argument, since the California administrators are so spooked about the danger to the tax status of the plan that they would not even provide an application to the plaintiffs.  Judge Wilken cut through the nonsense, finding that the plaintiffs do have a personal stake and a real controversy with the government concerning their eligibility.

More significantly, on the merits, Judge Wilken found that plaintiffs had the makings of a valid claim of denial of equal protection and due process.  Assuming one uses the rational basis test to evaluate these claims — the lowest level of constitutional scrutiny — there must be some rational connection between a legitimate governmental purpose and the denial of the benefit in question to these plaintiffs.  Judge Wilken noted the DOMA decision from last summer by U.S. District Judge Joseph Tauro (Massachusetts) finding that there was no rational basis supporting the denial of various federal benefits pursuant to DOMA, and concurred with his analysis.

The Justice Department has basically disavowed the various policy statements underlying DOMA that were articulated in Congressional reports and debate in 1996 when the measure was passed, instead relying on the argument that Congress could have rationally decided in 1996 that with the possibilty looming that some state (at that time, Hawaii) might authorize same-sex marriages, the federal government should "preserve the status quo" and maintain national uniformity for federal programs by freezing into federal law the then-universal definition of marriage as the union of one man and one woman. 

Describing their argument, Judge Wilken wrote: "According to Federal Defendants, preserving the status quo allows states to resolve the issue of same-sex marriage for themselves, and provides uniformity in the federal allcoation of marriage-related rights and benefits.  Section three of the DOMA, however, alters the status quo because it impairs the states' authority to define marriage, by robbing states of the power to allow same-sex civil marriages that will be recognized under federal law."

She continued, "Federal Defendants concede that section three of the DOMA effected a departure from the federal government's prior practice of generally accepting marriages recognized by state law."  She noted that the House committee report even points out that deciding who can marry was traditionally "uniquely a function of state law."  Therefore, adopting a federal definition was a departure from the status quo, not its preservation.  Indeed, as she points out, the inability of California to extend eligibility for the long-term care insurance program is a prime example, deterring the state from providing full-scale marriage rights by placing in jeopardy the preferred tax status of the program for all its other participants. 

Judge Wilken found that there was such an obvious lack of rational justification for the application of DOMA in this case that there was no need to consider whether heightened or strict scrutiny should be applied, and thus no need to consider whether sexual orientation is a suspect classification or whether the government policy burdens a fundamental right.

Her analysis of the government's case leaves little doubt that the government would most likely lose on a summary judgment motion by the plaintiffs, but the next step is to broaden the potential impact of the case by certifying a class of all similarly situated California public employees with same-sex spouses, which will be on the agenda when the court hears the class certification motion on February 24.