Striking down the Defense of Marriage Act (DOMA) as unconstitutional Oct. 18, 2012, the 2nd U.S. Circuit Court of Appeals noted that the law “has varying impact on more than a thousand federal laws.” That includes numerous federal employment laws, as the AFL-CIO noted in a friend-of-the-court brief filed in the 2nd Circuit case.
Edie Windsor, 83, challenged DOMA after the federal government taxed her more than $363,000 when her spouse, Thea Spyer, passed away in 2009. Windsor and Spyer first met in 1963, married in Canada in 2007, and lived in New York.
But when Spyer died, the federal government “treated them as complete strangers because of DOMA, significantly reducing Edie’s inheritance by depriving her of the marital deduction that otherwise allows a married couple to pass property to the surviving spouse without tax penalty,” according to a press release from Democratic congressional leaders when they filed an amicus brief against DOMA Sept. 7, 2012.
After the Obama administration announced in 2011 that the U.S. Department of Justice would no longer defend DOMA from constitutional challenges, the House’s Bipartisan Legal Advisory Group (BLAG) voted 3-2 to defend the law. House Minority Leader Nancy Pelosi, D-Calif., and Democratic Whip Steny Hoyer, D-Md., voted against defending the law.
Law Ruled Unconstitutional
Joining a 1st Circuit decision earlier this year, the 2nd Circuit held in Windsor v. United States of America, No. 12-2335-cv, that DOMA violates equal protection and is unconstitutional.
Heightened constitutional scrutiny of DOMA is justified, the 2nd Circuit determined, because:
- Homosexuals as a group have historically endured persecution and discrimination.
- Homosexuality has no relation to aptitude or ability to contribute to society.
- Homosexuals are a discernible group with nonobvious distinguishing features, especially among those who enter same-sex marriages.
- The class remains a politically weakened minority.
Therefore an intermediate level of scrutiny of the law is in order, the court ruled.
To withstand such scrutiny, a law’s classification must be “substantially related to an important government interest.” And by “substantially related,” that means “extremely persuasive,” genuine, not hypothesized or invented after the fact in response to litigation.
BLAG argued that there were several important government interests, namely:
- The maintenance of a consistent federal definition of marriage.
- The protection of the government’s fiscal health.
- The avoidance of the unknown consequences of a novel redefinition of a foundational social institution.
- The encouragement of “responsible procreation.”
The court rejected each of these arguments. “The emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations,” the 2nd Circuit stated.
As for the fiscal argument, “the saving of welfare costs cannot justify an otherwise invidious classification,” the court noted.
Similar appeals to tradition were made and rejected when the Supreme Court struck down anti-sodomy laws in 2003 (Lawrence v. Texas, 539 U.S. 558).
The 2nd Circuit also decided that “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ ”
Affected Employment Laws
Supreme Court observers continue to speculate that the Supreme Court may grant review in a DOMA case to provide definitive guidance on its constitutionality this term.
If it were to strike down DOMA, there would be more than mere ripple effects on employment law, suggests the AFL-CIO’s Sept. 7, 2012, brief in the Windsor case.
The brief highlighted four areas where DOMA “significantly limits the rights of workers married to persons of the same sex.” The law:
- Prevents or significantly restricts access to spousal health care benefits.
- Denies to same-sex couples benefits provided to other married couples when a worker suffers a workplace injury, or otherwise becomes ill or infirm.
- Impinges on the ability of workers to plan for retirement by mandating a complete denial of Social Security benefits to same-sex spouses of covered workers.
- Circumscribes immigration and naturalization laws for married same-sex couples seeking to work and remain lawfully in the United States.
Although some employers extend health care benefits to employees’ same-sex spouses, DOMA denies those employees equal access to such benefits, the AFL-CIO stated. “The application of DOMA to the federal tax code limits the ability of public and private employers to extend equal benefits by imposing disparate payroll and income tax requirements on both employers and on employees married to a person of the same sex,” it added.
DOMA also denies employees married to same-sex spouses COBRA’s guarantees of uninterrupted health care. Employees with same-sex spouses are denied Social Security survivor benefits, as well as equal access to the Family and Medical Leave Act.
While every state in the 2nd Circuit (Connecticut, New York and Vermont) prohibits employers from denying spousal benefits on the basis of their sexual orientation, Employee Retirement Income Security Act pre-emption “strips these states the autonomy to extend rights and benefits under ERISA-covered employee pension benefit plans to same-sex spouses.”
Surviving spouses of different-sex couples may roll over a deceased spouse’s 401(k) plan into their own account and defer withdrawing funds until they reach 70.5 years old. But a surviving same-sex spouse designated as the beneficiary of her spouse’s retirement account must begin withdrawing distributions by the end of the year following the year of death.
And the employment law implications go on. “Because of DOMA, the participant with a same-sex spouse is permitted to change her beneficiary, obtain a loan from the retirement account or change the form of benefit (e.g., to a lump sum from an annuity) without her spouse’s written approval or knowledge.”
‘Judicial Legislation’ Opposed
But in its Aug. 1, 2011, motion to dismiss Windsor’s claim, BLAG stated, “Congress and the states are the proper fora for resolving the issue of same-sex marriage. Just last month, New York—the nation’s third-most-populous state—enacted same-sex marriage through the democratic process. It is not this court’s role to declare same-sex marriage a constitutional right and eliminate that discussion and resolution. The legislatures of the individual states may decide to permit same-sex marriage or the Supreme Court may decide to overturn its precedent and strike down DOMA. But, until then, this court is constrained to uphold DOMA. … Indeed, it would not be proper for judges to use the vague concept of ‘equal protection’ to undermine marriage just because it is a heterosexual institution. The equal protection doctrine is not a charter for restructuring the historic institution of marriage by judicial legislation.”
In an Oct. 18, 2012, statement, Bruce Hausknecht, judicial analyst with CitizenLink, said, “Judges have no business changing the definition of marriage, and they certainly venture far beyond what our Constitution and the 14th Amendment reasonably were understood to mean by taking it upon themselves to engage in social engineering, as today's opinion seeks to do. We're confident that this federal law enshrining the definition of marriage, passed overwhelmingly by Congress in 1996, will be upheld by the U.S. Supreme Court in its upcoming term.” CitizenLink is an affiliate of Focus on the Family, which describes itself as “a global Christian ministry dedicated to helping families thrive.
But New York Attorney General Eric Schneiderman praised the 2nd Circuit ruling, saying, “Today's decision is a major step forward in the fight for equality. I am pleased that the court recognized that the federal Defense of Marriage Act lacks an adequate justification and violates the equal protection clause of the U.S. Constitution.”
Allen Smith, J.D., is manager, workplace law content, for SHRM. To read the original article, please click here.