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“Irresponsible procreation” as a defense of DOMA

On October 18, 2012, in 2-1 decision in the case of Windsor v. United States, 699 F. 3d 169 (2nd. Cir. 2012), the United States Court of Appeals for the Second Circuit concluded that Section 3 of the Defense of Marriage Act (DOMA) violates equal protection and is therefore unconstitutional.  Many Supreme Court watchers believe this is the case that court will chose to review to decide the constitutionality of DOMA.

Since I started practicing family law in 1993 I have been a public advocate of the right of homosexuals to marry.  The struggle for marriage equality will be the defining civil rights issue implicating family law during my legal career.  Partially out of a desire to be on what I believe will be the right side of history, some of the few family law cases I will outright refuse to handle are those that would require me to advocate DOMA’s constitutionality.  Thus I find cases involving DOMA’s constitutionality to be fascinating.

Windsor may be the most fascinating such case yet.  Edith Windsor was a surviving spouse of a same-sex couple that was married in Canada in 2007 and was a resident in New York at the time of her spouse’s death in 2009.  Windsor was denied the benefit of the spousal deduction for federal estate taxes solely because Section 3 of DOMA prohibits the United States and its agencies from recognizing marriages between homosexuals.  Windsor paid $363,053 in estate taxes that she would not otherwise have had to pay had the United States recognized her marriage.  She then sued for return of these funds, arguing that Section 3 of DOMA violated her right to equal protection.

The majority agreed.  For the first time a Federal Appeals court determined that homosexuals were a quasi-suspect class for purposes of equal protection, entitling them to an intermediate level of scrutiny for laws that adversely singled them out :

The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class.  They include: A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless.  Immutability and lack of political power are not strictly necessary factors to identify a suspect class.  Nevertheless, immutability and political power are indicative, and we consider them here.  In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Citations omitted

Finding that Section 3 of DOMA could not withstand this intermediate level of scrutiny, the majority found it violated Windsor’s right to equal protection.

The dissent is equally fascinating.  In Baker v. Nelson, 409 U.S. 810 (1971), an appeal from a Minnesota Supreme Court decision finding no right to same-sex marriage, the Supreme Court issued a summary dismissal “for want of a substantial federal question.” The dissent held that Baker foreclosed a determination that laws adversely impacting homosexuals were required to withstand heightened scrutiny.

Because the Obama administration will no longer support DOMA’s constitutionality in court, Congress was left to represent the United States on appeal and the dissent analyzed the arguments raised by Congress.  Those arguments are that DOMA,

advances governmental interest in:  (1) maintaining a uniform federal definition of marriage, (2) preserving the public  fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their biological parents, and (6) encouraging childrearing in a setting with both a mother and a father

The dissent focused on two factors that it held rationally justified DOMA: A) Responsible Procreation and Childrearing by Biological Parents; and B) Maintaining the Status Quo of Uniformity. It is the first argument I find fascinating:

Because the state has an interest in children, the state is thus also interested in preventing “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals.  Because of these legitimate interests, reserving federal marriage rights to opposite-sex couples protects civil society, because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families.  Marriage thus plays the important role of channeling opposite-sex sexual desires which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children.

Citations omitted.

The term “irresponsible procreation” came from Congress’ brief and I find its argument ridiculous but its implication hilarious.  The argument is ridiculous because allowing homosexuals to marry does nothing to undermine the benefits marriage confers on us breeding heterosexuals.  The argument is hilarious because it flatly states that but for the inducement of marriage, heterosexuals could not be trusted to engage in sexual relations carefully or breed responsibly.

I’ve heard the argument that only heterosexuals should be allowed to marry because heterosexuality is the only “proper” form of human sexuality.  Congress made an argument that stands this claim on its head.  Evidently, heterosexuals are such irresponsible, sex-crazed idiots that, but for the institution of marriage, we would have unstable relationships, indulge in accidental procreation, and rear damaged children.  Congress sure doesn’t think well of us breeders.

  • Many heterosexuals are irresponsible breeders. That is a fact supported by statistics. But I don’t believe it is relevant to the DOMA.

  • I suppose there are those in the Congress who believe that “all roads lead to Rome” and thus subscribe to the classical theory that moral decay destroyed the Roman Empire.

  • DOMA doesn’t seem to be accomplishing these declared goals at this point. If we want to return stability to procreation and child rearing in the United States some really radical initiative is going to be necessary. I suspect anything which might have a real major impact would be deeply offensive to conservatives. Regulating sex has always been an imperfect undertaking, even in the most traditional societies. Getting 300 million people to bang out 2.1 children each and have sex with only one person for 40+ years would make the Apollo Moon Program look like a cheap game of scrabble. I would tackle global warming first.

  • Gregory, really well written post. I just have to say “wow” about the arguments being made by Congress and the dissent. If you slice through the BS I have to think the real argument by anyone disputing a gay couple’s right to marriage goes something like this – “We think that gay couples are kind of yucky and we’d rather pretend they don’t exist.”

    I’ve also been following this issue for a while. I wrote a post about four years ago (http://houstondivorce.com/blog/2009/01/gay-divorce-in-texas/) about a catch 22 situation that had arisen in Texas and was on appeal. If a gay couple legally marries then later wants to divorce in their home state of Texas they are out of luck. The Texas constitution defines marriage as only between a man and a women, so no divorce. Really a sad state of affairs.

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