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DOMA: Analyzing the National Organization for Marriage’s amicus brief in Golinski v. OPM

DOMA trials Golinski Marriage equality

By Scottie Thomaston

Thanks to Kathleen for this filing

The deadline for filing amicus briefs at the Ninth Circuit Court of Appeals in support of the Bipartisan Legal Advisory Group (BLAG) defending DOMA and seeking to overturn the District Court decision in Golinski v. OPM was June 11. The amici for BLAG want to see the Defense of Marriage Act upheld as constitutional by the Ninth Circuit, so their briefs are intended to provide arguments that help the judges reach that conclusion.

The National Organization for Marriage filed a brief in the case, making two general points:

(1) DOMA is entirely consistent with longstanding precedent in which Congress defines terms, including terms related to domestic relations and marriage, as used in federal law

(2) The court below ignored crucial state interests in marriage that amply justify Congress’ decision to enact DOMA

Read what NOM has to say below in the extended entry…

Regarding the first point, NOM argues that the court’s judgment and analysis would result in “forcing Congress to adopt state classifications for purposes of federal statutes.” Calling this development a “reverse Supremacy Clause” they claim, essentially, that the court below erroneously suggested that DOMA is a departure from federalist principles, and that this judgment would allow states to impose their definition of marriage onto the federal government. They rightly point out that while Congress may adopt state classifications for purposes of federal law, it doesn’t have to; but they seem to be inferring something that’s incorrect: namely that a ruling saying DOMA is unconstitutional would necessarily force a definition of marriage onto the federal government rather than making the federal government revert back to its previous stance of neutrality regarding state marriage laws.

They argue that DOMA doesn’t “commandeer” the states, which makes sense – and they cite the First Circuit decision in Massachusetts v. HHS/Gill v. OPM, as backup. Then, they write:

In enacting DOMA, Congress has not infringed upon the powers of any state to regulate matters of family law, even to the point of adopting a contrary definition of marriage. Indeed, since DOMA was adopted, a handful of states have adopted definitions of marriage that differ from the definition in DOMA.

Though, as the First Circuit decision noted, DOMA serves as a deterrent to adopting a definition that includes same-sex couples:

DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. 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 affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage.

NOM makes the argument that Congress has always “been free” to define terms used in federal statutes, and then they characterize the District Court’s analysis as follows:

Tellingly, not even the plaintiffs have suggested that Congress lacks authority to legislate in the subject matter areas impacted by DOMA (e.g., taxation, immigration, etc.). Instead, they have argued that when regulating in these areas, Congress must defer to each state when the touching on matters also involving marriage or domestic relations. Thus, under the analysis adopted by the court below, Congress may unquestionably legislate in the area of taxation, but must defer to each state in determining who is permitted to file a joint return. Or Congress may regulate immigration status, but must defer to individual state marriage laws in determining whether to grant certain visa or citizenship applications.

Here is how the decision below actually characterized the history of marriage laws before DOMA:

Congress accepted without revision the patchwork of different state marriage definitions regarding, for example, age requirements or marriage among related persons. (See e.g., Declaration of Nancy Cott (“Cott Decl.”) at ¶¶ 26, 51-52, 56-57.) The federal government has continued to defer to the states during unprecedented, hotly contested shifts in state marriage law, especially in the area of interracial marriage.

The strong tradition of federalism mandated that the federal government refrain from inserting itself in the business of domestic relations.

The Court finds that the passage of DOMA, rather than maintaining the status quo in the arena of domestic relations, stands in stark contrast to it. Accordingly, the Court finds that Congressional caution in defining a legislative term and maintaining the status quo does not constitute a rational basis.

Or, more simply: there was no uniform federal marriage law at any point in history. Before Loving v. Virginia ruled that bans on interracial marriage are unconstitutional, some states allowed interracial marriage and some did not, but the federal government didn’t step in and deny federal benefits to interracial couples – they handed out benefits based on a state’s definition of who was married.

NOM says this has “never” been the way the federal government has worked in conjunction with state governments. Then, they admit:

While DOMA may have been the first time in which Congress adopted a single definition of marriage applicable to all federal statutes, Congress has long defined marriage for purposes of federal statutes, even when such definitions may conflict with applicable state law.

NOM cites the recent decision Astrue v. Capato as evidence that “there has never been a special carve-out that requires Congress to defer to state law when federal statutes intersect with domestic relations and marriage.” That case was a debate over the statutory interpretation of a provision of the Social Security Act. The Court ruled that the government agency (in this case the Social Security Administration) put forward a reasonable interpretation of the text of the statute, so they are entitled to deference as a government agency.

In the case, the Court held that for purposes of qualifying for survivor’s benefits, courts should defer to state laws that address estates and wills. NOM claims that the decision means that there is no obligation to defer to state laws, and that in this case they only did so because that’s what Congress wanted. Actually, though, the standard for this type of deference is such that the view of the agency only has to be permissible. There can be other interpretations that are equally valid. In other words, it’s hard to see how this case is relevant to their analysis. The case was about deference to a government agency’s view, per a longstanding rule in the Supreme Court. And anyway, the Court did defer to state law.

NOM then goes through a listing of current laws and pending bills that rely on DOMA’s definition of marriage. The widely cited figure is of course that DOMA affects 1,138 laws in immigration, bankruptcy and other areas, so this is not a surprise.

They address the Respect for Marriage Act (DOMA repeal bill), saying that:

The proposed repeal of DOMA, S.598, would consider same-sex marriages as valid for federal law purposes even if they are not so recognized in the state of the couple. Both of these bills would adopt a uniform federal definition of domestic relations that would conflict with the law of many states.

The Act seems to actually repeal the “uniform federal definition of domestic relations” and to make sure that a marriage is legal if the couple was married in a state in which the marriage was legally allowed. Here’s the relevant text:

‘§ 7. Marriage ‘‘(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. ‘(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.’’

It looks to me like the Act only creates a “uniform” definition in the sense that it says across the board that if a couple is married in a state where it’s legal, they’re in a legal marriage.

NOM then says that Congress has been allowed to define marriage since the 19th century, and they go quite in depth about polygamy and the federal laws against it, and the constitutional challenge to the law Reynolds v. US. The Court had ruled that a conviction for polygamy would stand even after a religious claim was raised against the statute. They said it is constitutional for Congress to regulate marriage:

It is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

The Court’s holding was simply that a religious freedom claim can’t prevent the federal government from writing laws impacting the cornerstone of society. The statutes banning polygamy involved criminal law and criminal behavior that Congress felt could erode society, and claiming it interferes with religious practices was not enough to make it unconstitutional:

This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

NOM argues that DOMA is only a “further requirement” for eligibility to receive federal benefits.

Lastly, NOM argues that the interpretation of history and of DOMA’s impact is “novel” (citing an article from 2010) and would dramatically impact many areas of federal law, forcing the invalidation of laws affecting marriage in all contexts. And they claim the doctrine of preemption – the doctrine that where federal and state laws conflict, the federal law is the one that will remain in use – would be “meaningless” under the court’s rationale.

One final point they make is that it doesn’t matter whether same-sex parents are good parents or whether one type of parent is better than the other (same-sex versus opposite-sex); the state interest in responsible procreation is actually about social approval of married couples:

In the House Report referenced by the court below, Congress referenced a scholarly report noting “marriage is a relationship which the community socially approves and encourages sexual intercourse and the birth of children. It is society’s way of signaling to would-be parents that their long-term relationship is socially important—a public concern, not simply a private affair.” The Report goes on to say: “That, then, is why we have marriage laws. Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”

So, according to NOM, it’s important to have socially-approved couples raising children together in monogamous families in long-term relationships, for society’s sake, as long as they aren’t same-sex couples. Otherwise, this is confusing, because it’s hard to see why same-sex couples couldn’t fit those exact specifications. The long-term health of a same-sex family is just as socially important as that of an opposite-sex family, assuming that society and government should be interested in the first place.

I’m also unsure about their circular reasoning for having marriage in the first place that excludes same-sex couples by its very existence. They are saying that marriage is heterosexual marriage, because there would be no need for marriage whatsoever if it weren’t exclusive to heterosexuals. This is confusing, and leaves families with same-sex parents in an untenable position. But this is from the National Organization for Marriage, so I wouldn’t have expected anything less.


  • 1. Jamie  |  June 19, 2012 at 12:30 pm

    It's interesting that NOM lawyers are pushing the idea that it doesn't matter if gay people are good parents or not, while NOM's "Director of Culture" (Thomas Peters) is busy pushing the rigged study and claiming it proves that they aren't. If it doesn't matter (as NOM states), then the only reason that Peters could be pushing the study is to create animosity and prejudice against gay families. It's also interesting that Peters also wrote an article disputing the fact that there are 1,138 federal rights and benefits associated with marriage, while their lawyers are busy peddling the fact that there are. It was clear that Peters was trying to convince his readers that DOMA doesn't really cause any problems and it's not that big of a deal that we deprive gay couples of a "few" rights. Someone should point out these inconsistencies to the court. It shows what everyone one knows, that NOM consistently lies and consistently says one thing in their public campaigns, while peddling something else entirely to the Courts.

  • 2. DaveP  |  June 19, 2012 at 12:42 pm

    It also doesn't matter if the total number of denied rights is 1,138 or 856 or 3. The Constitution of the United States has an EQUAL protection clause, not a 'almost but not quite equal protecton clause'. Equal means equal.

  • 3. karen in kalifornia  |  June 19, 2012 at 12:58 pm

    Nom's brief filed by Marriage Law Foundation Ex Dir William Duncan (and only person listed on their website). Catholic and Mormon association.
    "The Foundation is directed by William C. Duncan with the assistance of a superb Board of Trustees. Mr. Duncan formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor."

  • 4. Scott Wooledge  |  June 19, 2012 at 1:13 pm

    If it's one thing NOM excels at it's talking out of both sides of their mouth at once.

    When NOM drop hundreds of thousands of out-of-state dollars into a battleground state, that's fine. They're just "defending marriage."

    When gay people and allies do it, they're buying politicians.

    When NOM makes threats to defeat politicians in elections, they're "defending marriage."

    When gays do it, they're being horrible bullies.

    They have no principles at all. Everything is fungible in the battle to hate on gay people.

  • 5. AnonyGrl  |  June 19, 2012 at 1:28 pm

    As to the "socially approved" couples, doesn't that simply say " we (or "society" or "Christians" or "heterosexuals"…) say that heterosexuals are better than homosexuals"? And doesn't that go a VERY long way toward not only PROVING animus but, in fact, defining it? If they are going to codify and explain and try to use as a valid argument the animus IN THEIR COURT DOCUMENTS, shouldn't someone toss them out on their respective (but hardly respectable) rears?

  • 6. Mykelbarber  |  June 19, 2012 at 1:31 pm

    NOM is a dinosaur wailing in its death throes. I cannot wait to bury Maggie.

  • 7. AnonyGrl  |  June 19, 2012 at 1:33 pm

    But I am guessing that "socially acceptable" is their latest attempt at a new meme, since "traditional marriage" and "natural marriage" and "responsible procreation" have collapsed underneath them like three legged card tables on a freshly waxed floor.

  • 8. Bob Barnes  |  June 19, 2012 at 1:50 pm

    OMG, is this the new dog whistle attack from the right? Rubio said today, "Gay marriage is 'about what society should tolerate'."

  • 9. MFargo  |  June 19, 2012 at 2:05 pm

    I wish I could get excited at the challenges NOM brings to the table, but they are so muddled and myopic it's like dust on a table. "While this…" then "while that…" what they mean is "We don't have a real point," other than "We don't like same sex marriage because we believe it's a sin and not God's plan." The rest of their arguments are smoke to hide that fact.

    "Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship." Seriously? I just read a study that loneliness in the elderly is a cause for premature death. Society has no interest in that? If they'd just put down their catechism they could consider a multitude of reasons society might have an interest in "unions."

  • 10. Bob Barnes  |  June 19, 2012 at 2:24 pm

    Nom writes:

    "In enacting DOMA, Congress has not infringed upon the powers of any state to regulate matters of family law, even to the point of adopting a contrary definition of marriage. Indeed, since DOMA was adopted, a handful of states have adopted definitions of marriage that differ from the definition in DOMA."

    The limitations set out by section 3 of DOMA has very much indeed "infringed upon the powers of any state to regulate matters of family law." Massachusetts had no problem proving that point, it's very self-evident.

    What I find most interesting is how NOM speaks to the court as if it were one of its unquestioning follower. "What we say is true because we state it as if it were fact."

  • 11. Sagesse  |  June 19, 2012 at 2:47 pm


  • 12. DaveP  |  June 19, 2012 at 2:57 pm

    And then there's this – their 'logic' about society's or the state's interest in providing civil marriage, and their conclusion that this therefore ought not include same sex marriage is completely broken at the core.

    Let's say that there IS a valid states interest served by encouraging couples who might accidentally have children (meaning straight couples) to legally marry and form a long-lasting, stable household for the purpose of raising the children that they created, and that the benefits provided by civil marriage are how the state provides this encouragement. (cont'd)

  • 13. DaveP  |  June 19, 2012 at 2:57 pm

    1) That certainly does NOT automatically mean there is any valid states interest served by DENYING those same benefits to people who do NOT have children accidentally. It's simply bad logic. Just because giving something to one group may be good doesn't automatically mean it's bad to also give it to another group.
    2) Aside from that, it ignores the simple fact that there are large numbers of same sex couples who are raising children and if the state has an interest in encouraging couples who are raising children to legally marry, that interest would equally apply to same sex couples.
    3) Aside from BOTH of those things, the ability or desire of a couple (gay or straight) to procreate and/or raise children has never been a condition for eligibility for access to civil marriage.

  • 14. Shannon  |  June 20, 2012 at 7:08 am

    Another thing NOM is good at is ignoring the fact that GAY PEOPLE EXIST. Their arguments never refer to people who are in same-sex relationships or same-sex marriage. As much as they argue about "society" they deny that gay people are part of society.

  • 15. Keoni Kalani'okai  |  June 20, 2012 at 7:46 am

    Very interesting….

    Justice Scalia argues that the goverment CANNOT force us to buy broccoli…..

    …YET, he might argue that the goverment can dictate what sort of long term relationship its people can enter into !

    The irony or the hipocrisy of discrimination…..

  • 16. Kate  |  June 20, 2012 at 7:52 am

    They even deny the children of gay people exist, repeatedly calling them "pets" instead of children!

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