On Thursday evening, a federal judge in California held that the Defense of Marriage Act and a provision of tax law unconstitutionally limit same-sex couples and domestic partners from participating in the long-term care plan offered by the California Public Employees Retirement System, or CalPERS.
The May 24 decision in the class-action lawsuit came from U.S. District Court Judge Claudia Wilken, a Clinton appointee to the U.S. District Court for the Northern District of California whose chambers are located in Oakland, and is the first federal court decision relating to the 1996 marriage-defining law since President Obama announced on May 9 that he believes that same-sex couples should be able to marry.
Wilken joins a growing group of federal judges to find DOMA unconstitutional. Judge Joseph Tauro reached a similar conclusion in 2010 in a case out of Massachusetts that is on appeal, and Judge Jeffrey S. White in California reached the same conclusion earlier this year in a case slated for appeals arguments in September.*
In the order issued Thursday evening, Wilken found that Section 3 of DOMA -- the federal definition of "marriage" and "spouse" -- "violates the equal protection rights of Plaintiff same-sex spouses" and that subparagraph (C) of Section 7702B(f) of the Internal Revenue Code "violates the equal protection rights of Plaintiff registered domestic partners." Specifically, the court found that "both provisions are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan."
In conclusion, Wilken ordered CalPERS not to use DOMA or the relevant tax provision to deny enrollment to same-sex spouse and registered domestic partners in the state. She also ordered that the federal government not disqualify CalPERS's plan from the beneficial tax treatment for following the court order. Finally, Wilken established in Thursday's ruling that the decision would be stayed, or put on hold, during an appeal of her decision if one is sought.
The plaintiffs and class in the case were represented by the Legal Aid Society -- Employment Law Center attorneys William McNeill III, Elizabeth Kristen and Claudia Center.
Because of the indirect nature of the constitutional challenges involved in this case, Dragovich v. U.S. Department of the Treasury, the case was unlike many of the other direct challenges to Section 3 of DOMA that are ongoing in several other federal courts. Both federal and state government entities and individuals were named as defendendants, for starters.
The case comes about because, even if CalPERS wanted to allow the participation of same-sex married couples or domestic partners in its long-term care program, Section 7702B(f)(2) of the Health Insurance Portability and Accountability Act (HIPAA) disqualifies a state-maintained plan from favorable tax treatment if it provides coverage to individuals other than those specified under the tax-code provision, which was signed into law a month before DOMA was in 1996. As Wilken noted, "The list of eligible individuals in Section 7702B(f)(2)(C) includes state employees and former employees, their spouses, and individuals bearing a relationship to the employees or spouses which is described in subparagraphs (A) through (G) of 26 U.S.C. § 152(d)(2)." Wilken found the decision to include subparagraphs (A) through (G) -- and not (H) -- of the underlying tax provision relevant because subparagraph (H) would have allowed for coverage for domestic partners, among others.
More broadly, in this case, as with the others, the federal agencies being sued, who are represented by the Department of Justice, did not defend the challenge to the constitutionality of Section 3 of DOMA. Because of that, the House Bipartisan Legal Advisory Group (BLAG) -- controlled by the House Republican leadership -- was permitted to intervene to defend it.
The federal government, however, continued to defend the tax code provision against a "substantive due process" challenge -- which protects people from the infringement of fundamental rights. DOJ argued in a court filing on February 21 that "the denial of eligibility for tax benefits associated with CalPERS's long-term care insurance does not infringe on a fundamental right or a significant liberty interest." The Department of Justice, which represents the federal defendants, went on to argue that "the ability and autonomy to engage in financial and long term care planning" was not a fundamental right.
Additionally, specifically as to domestic partners, the DOJ argued, "Section 7702B(f)'s non-inclusion of domestic partners as eligible relatives is not a classification based on sexual orientation or any other protected class. The term 'domestic partner' is not synonymous with a partner of the same sex because in the nine states that recognize domestic partnerships, only two limit it to same-sex couples."
Wilken disagreed with BLAG as to the DOMA challenge and with DOJ as to the domestic partner challenge, finding that denying married same-sex couples or same-sex domestic partners the ability to enroll in the CalPERS long-term care plan -- because the tax law and DOMA require such denial in order to remain a qualified long-term care plan -- violates the equal protection clause.
READ the order: DragovichOrder.pdf
* = A federal bankruptcy judge in California -- supported by several others -- also found that DOMA was unconstitutional insofar as it barred married same-sex couples from filing joint bankruptcy returns. The case initially was appealed but was withdrawn because neither DOJ nor BLAG wished to appeal the decision, and the DOJ later told Metro Weekly last year "that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law." Bankruptcy judges -- unlike Wilken, Tauro and Smith -- are not "Article III judges" with lifetime tenure and had, thus, not been included in the initial post.