United States Court of Appeals For the First Circuit
No. 10-2204
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff, Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
Defendants, Appellants. ________________________
Nos. 10-2207 & 10-2214
DEAN HARA,
Plaintiff, Appellee/Cross-Appellant,
NANCY GILL, ET AL.,
Plaintiffs, Appellees,
KEITH TONEY, ET AL.,
Plaintiffs,
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
Defendants, Appellants/Cross-Appellees,
HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge] Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges.
Paul D. Clement with whom H. Christopher Bartolomucci, Conor B. Dugan, Nicholas J. Nelson, Bancroft PLLC, Kerry W. Kircher, General Counsel, Office of General Counsel, U.S. House of Representatives, Christine Davenport, Sr., Assistant Counsel, Katherine E. McCarron, Assistant Counsel, William Pittard, Assistant Counsel, and Kirsten W. Konar, Assistant Counsel, were on brief for intervenor-appellant, the Bipartisan Legal Advisory Group of the U.S. House of Representatives. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Robert E. Kopp, Michael Jay Singer, August E. Flentje and Benjamin S. Kingsley, Appellate Staff, Civil Division, Department of Justice, were on brief for the federal defendants. Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. Conference of Catholic Bishops, Von G. Keetch, Alexander Dushku, R. Shawn Gunnarson, Kirton & McConkie and Carl H. Esbeck, Legal Counsel, Office of Governmental Affairs, National Association of Evangelicals, on brief for U.S. Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-day Saints; The Ethics and Religious Liberty Commission of the Southern Baptist Convention; The Lutheran Church-Missouri Synod; The Union of Orthodox Jewish Congregations of America; The Massachusetts Catholic Conference; The Brethren in Christ Church; The Christian and Missionary Alliance; The Conservative Congregational Christian Conference; The Evangelical Free Church of America; The Evangelical Presbyterian Church; The International Church of the Foursquare Gospel; The International Pentecostal Holiness Church; The Missionary Church; Open Bible Churches [USA]; The United Brethren in Christ Church; The Wesleyan Church, Amici Curiae. John Anthony Simmons, Sr. and David Ramos on brief for American College of Pediatricians, Amicus Curiae. Lawrence J. Joseph on brief for Eagle Forum Education & Legal Defense Fund, Amicus Curiae. Paul Benjamin Linton, Special Counsel, Thomas More Society, Thomas Brejcha, President & Chief Counsel, Thomas More Society, and Christopher M. Gacek, Family Research Council, on brief for the Family Research Council, Amicus Curiae. Kristen K. Waggoner and Ellis, Li & McKinstry PLLC on brief for Robert P. George, Sherif Girfis, and Ryan T. Anderson, Amici Curiae.
-2- David Austin R. Nimocks, Brian W. Raum, Dale Schowengerdt and Holly L. Carmichael, Alliance Defense Fund, on brief for Representative Lamar Smith, Amicus Curiae. Mary E. McAlister, Stephen M. Crampton, Rena M. Lindevaldsen, Mathew D. Staver and Anita L. Staver, Liberty Counsel, on brief for Liberty Counsel, Amicus Curiae. Thomas M. Fisher, Solicitor General, Office of the Indiana Attorney General, Gregory F. Zoeller, Attorney General, Office of the Indiana Attorney General, Bill Schuette, Attorney General, State of Michigan, Mark L. Shurtleff, Attorney General, State of Utah, John W. Suthers, Attorney General, State of Colorado, and Alan Wilson, Attorney General, State of South Carolina, on brief for the States of Indiana, Colorado, Michigan, South Carolina, and Utah, Amici Curiae. John A. Eidsmoe, Roy S. Moore and Benjamin D. DuPré, Foundation for Moral Law, on brief for Foundation for Moral Law, Amicus Curiae. George I. Goverman on brief pro se, Amicus Curiae. Russell D. Raskin, Raskin & Berman, Abba Cohen and Mordechai Biser, Agudath Israel of America, on brief for Agudath Israel of America, Amicus Curiae. William C. Duncan, Marriage Law Foundation, and Joshua K. Baker, National Organization for Marriage, on brief for National Organization for Marriage, Amicus Curiae. Steven W. Fitschen and Douglas E. Myers on brief for the National Legal Foundation, Amicus Curiae. Stephen C. Whiting and The Whiting Law Firm on brief for Massachusetts Family Institute, Amicus Curiae. Kevin T. Snider, Pacific Justice Institute, on brief for Pacific Justice Institute, Amicus Curiae. Eric C. Bohnet on brief for Concerned Women for America, Amicus Curiae. Gary G. Kreep on brief for National Association for Research & Therapy of Homosexuality (NARTH), Amicus Curiae. Mary L. Bonauto with whom Gary D. Buseck, Vickie L. Henry, Janson Wu, Gay & Lesbian Advocates & Defenders, Paul M. Smith, Luke C. Platzer, Matthew J. Dunne, Melissa A. Cox, Jenner & Block LLP, Claire Laporte, Ara B. Gershengorn, Matthew E. Miller, Amy Senier, Catherine Deneke, Foley Hoag LLP, David J. Nagle, Richard L. Jones, and Sullivan & Worcester LLP were on brief for plaintiffs, appellees Nancy Gill, et al., and plaintiff, appellee, cross- appellant Dean Hara. Maura T. Healey, Assistant Attorney General, with whom Martha Coakley, Attorney General, Jonathan B. Miller, Assistant Attorney General, Christopher K. Barry-Smith, Assistant Attorney General, Mark C. Fleming, Felicia H. Ellsworth, Brian J. Boyle Jr., Alan E. Schoenfeld and Wilmer Cutler Pickering Hale and Dorr LLP were on brief for plaintiff, appellee Commonwealth of Massachusetts.
-3- William F. Sheehan, Goodwin Procter LLP and Nathalie F.P. Gilfoyle, American Psychological Association, on brief for the American Psychological Association, the Massachusetts Psychological Association, the American Psychiatric Association, the National Association of Social Workers and its Massachusetts Chapter, the American Medical Association, and the American Academy of Pediatrics, Amici Curiae. Clifford H. Ruprecht, Catherine R. Connors, Frank H. Bishop and Pierce Atwood LLP on brief for historians Peter W. Bardaglio, Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman, Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley and Barbara Young Welke, Amici Curiae. Patricia A. Peard, Ronald W. Schneider, Jr., Bernstein Shur and Katharine K. Baker, Professor of Law, Chicago-Kent College of Law, on brief for Family Law Professors, Amici Curiae. William L. Chapman, Emily Gray Rice, Orr & Reno, P.A., Joan Heifetz Hollinger, Lecturer-in-Residence, Child Advocacy Program, University of CA, Berkeley School of Law, Courtney Joslin, Acting Professor, UC Davis School of Law, and Katharine Silbaugh, Professor of Law and Law Alumni Scholar, on brief for Family and Child Welfare Law Professors, Amici Curiae. Robert G. Young, Daryl J. Lapp, Edwards Wildman Palmer LLP, James D. Esseks, Joshua A. Block, American Civil Liberties Union Foundation, Shannon Minter, Christopher F. Stoll, National Center for Lesbian Rights, Jon W. Davidson, and Peter Renn, Lambda Legal, on brief for 31 Bar Associations, Public-Interest Organizations and Legal Service Organizations, Amici Curiae. Mirian R. Nemetz, Kathleen Connery Dawe, Michael B. Kimberly, Mayer Brown LLP, and Heather C. Sawyer, Minority Counsel, Committee on the Judiciary, Ranking Members John Conyers, Jr. and Jerrold Nadler, on brief for Members of the U.S. House of Representatives- Including Objecting Members of the Bipartisan Legal Advisory Group, Representatives Nancy Pelosi and Steny H. Hoyer, Amici Curiae. Alan B. Morrison, George Washington Law School, Anne L. Weismann, Melanie Sloan, Citizens for Responsibility and Ethics in Washington, on brief for Citizens for Responsibility and Ethics in Washington, Amicus Curiae. Sabin Willett, Beth I.Z. Boland and Bingham McCutchen LLP on brief for 70 Business, Professional and Municipal Employers, and Professional, Trade, and Civic Organizations Representing Employers, Amici Curiae. Jacob C. Cohn, Jeffrey I. Pasek and Cozen O'Connor on brief for the Jewish Social Policy Action Network, Amicus Curiae. James L. Linsey, Cohen, Weiss and Simon LLP, National Association of Letter Carriers, Judith A. Scott, General Counsel,
-4- Nicole G. Berner, Associate General Counsel, Laurel R. Webb, Assistant General Counsel, Service Employees International Union, David Borer, General Counsel, Leisha A. Self, Staff Counsel, American Federation of Government Employees, John C. Dempsey, General Counsel, American Federation of State, County and Municipal Employeees, David Strom, General Counsel, American Federation of Teachers, Thomas R. Carpenter, General Counsel, American Federation of Television and Radio Artists, Edward J. Gilmartin, General Counsel, Association of Flight Attendants, Alan S. Gordon, General Counsel, Deborah Allton-Maher, Eastern Counsel, American Guild of Musical Artists, Patrick J. Szymanski, General Counsel, Change to Win, Mary K. O'Melveny, General Counsel, Communications Workers of America, National Education Association, Duncan Crabtree-Ireland, General Counsel, Danielle S. Van Lier, Assistant General Counsel, Screen Actors Guild, David Rosen, General Counsel, Transport Workers Union of America, Michael Nicholson, General Counsel, International Union, UAW, Nick Clark, General Counsel, United Food and Commercial Workers International Union, American Federation of Musicians, Clinton J. Miller III, General Counsel, Erika A. Diehl, Assistant General Counsel, United Transportation Union, Richard J. Brean, General Counsel, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, and Bradley T. Raymond, General Counsel, International Brotherhood of Teamsters, on brief for Labor Organizations, Amici Curiae. Harvey J. Wolkoff, Jessica M. Lindemann, Russell P. Plato, Samuel P. Bickett, Ropes & Gray LLP, Robert O. Trestan, Steven C. Sheinberg, Steven M. Freeman, Deborah Bensinger, Anti-Defamation League, on brief for Anti-Defamation League, Andover Newton Theological School, California Council of Churches, California Faith for Equality, Central Conference of American Rabbis, General Synod of the United Church of Christ, Hadassah, the Women's Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Alliance for Law & Social Action, Jewish Reconstructionist Federation, MA Conference of the United Church of Christ, National Council of Jewish Women, People for the American Way Foundation, Society for Humanistic Judaism, Union for Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Legislative Ministry California, the Unitarian Universalist Ministers Association, the Universal Fellowship of Metropolitan Community Churches, and Women of Reform Judaism, Amici Curiae.
May 31, 2012
-5- BOUDIN, Circuit Judge. These appeals present
constitutional challenges to section 3 of the Defense of Marriage
Act ("DOMA"), 1 U.S.C. § 7, which denies federal economic and other
benefits to same-sex couples lawfully married in Massachusetts and
to surviving spouses from couples thus married. Rather than
challenging the right of states to define marriage as they see fit,
the appeals contest the right of Congress to undercut the choices
made by same-sex couples and by individual states in deciding who
can be married to whom.
In 1993, the Hawaii Supreme Court held that it might
violate the Hawaii constitution to deny marriage licenses to same-
sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993).
Although Hawaii then empowered its legislature to block such a
ruling, Haw. Const. art. I, § 23--which it did, Act of June 22,
1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev.
Stat. § 572-1)--the Hawaii decision was followed by legalization of
same-sex marriage in a small minority of states, some by statute
and a few by judicial decision;1 many more states responded by
banning same-sex marriage by statute or constitutional amendment.2
1 E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). 2 E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May
-6- Congress reacted with the same alarm as many state
legislatures. Within three years after the Hawaii decision, DOMA
was enacted with strong majorities in both Houses and signed into
law by President Clinton. The entire statute, reprinted in an
addendum to this decision, must--having only two operative
paragraphs--be one of the shortest major enactments in recent
history. Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for
purposes of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
Section 2, which is not at issue here, absolves states from
recognizing same-sex marriages solemnized in other states.
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 also leaves
13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).
-7- federal employees unable to share their health insurance and
certain other medical benefits with same-sex spouses.
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. The number of
couples thus affected is estimated at more than 100,000.3 Further,
DOMA has potentially serious adverse consequences, hereafter
described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples
married in Massachusetts and three surviving spouses of such
marriages brought suit in federal district court to enjoin
pertinent federal agencies and officials from enforcing DOMA to
deprive the couples of federal benefits available to opposite-sex
married couples in Massachusetts. The Commonwealth brought a
companion case, Massachusetts v. DHHS, No. 10-2204, concerned that
DOMA will revoke federal funding for programs tied to DOMA's
opposite-sex marriage definition--such as Massachusetts' state
Medicaid program and veterans' cemeteries.
3 U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/newsroom/releases/archives/2010_census/cb11 -cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last visited May 22, 2012).
-8- By combining the income of individuals in same-sex
marriages, Massachusetts' Medicaid program is noncompliant with
DOMA, and the Department of Health and Human Services, through its
Centers for Medicare and Medicaid Services, has discretion to
rescind Medicaid funding to noncomplying states. Burying a veteran
with his or her same-sex spouse removes federal "veterans'
cemetery" status and gives the Department of Veterans' Affairs
discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district
court but, on July 8, 2010, that court found section 3
unconstitutional under the Equal Protection Clause. Gill v. Office
of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the
companion case, the district court accepted the Commonwealth's
argument that section 3 violated the Spending Clause and the Tenth
Amendment. Massachusetts v. U.S. Dep't of Health & Human Servs.,
698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court's judgment declared section 3
unconstitutional and enjoined the federal officials and agencies
from enforcing section 3, but the court stayed injunctive relief
pending appeals. The judgment included specific remedies ordered
for the named plaintiffs in relation to tax, social security and
like claims. With one qualification--discussed separately below--
the federal defendants have throughout focused solely upon the
district court's premise that DOMA is unconstitutional.
-9- The Justice Department filed a brief in this court
defending DOMA against all constitutional claims. Thereafter,
altering its position, the Justice Department filed a revised brief
arguing that the equal protection claim should be assessed under a
"heightened scrutiny" standard and that DOMA failed under that
standard. It opposed the separate Spending Clause and Tenth
Amendment claims pressed by the Commonwealth. The Gill plaintiffs
defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department's
about face while defense of the statute passed to a group of
Republican leaders of the House of Representatives--the Bipartisan
Legal Advisory Group ("the Legal Group")--who retained counsel and
intervened in the appeal to support section 3. A large number of
amicus briefs have been filed on both sides of the dispute, some on
both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is
de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and
the issues presented are themselves legal in character, even though
informed by background information as to legislative purpose and
"legislative facts" bearing upon the rationality or adequacy of
distinctions drawn by statutes. E.g., FCC v. Beach Commc'ns, Inc.,
508 U.S. 307, 314-20 (1993). Such information is normally noticed
by courts with the assistance of briefs, records and common
-10- knowledge. Daggett v. Comm'n on Governmental Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal
protection and federalism with the need to assess the rationale for
a congressional statute passed with minimal hearings and lacking in
formal findings. In addition, Supreme Court precedent offers some
help to each side, but the rationale in several cases is open to
interpretation. We have done our best to discern the direction of
these precedents, but only the Supreme Court can finally decide
this unique case.
Although our decision discusses equal protection and
federalism concerns separately, it concludes that governing
precedents under both heads combine--not to create some new
category of "heightened scrutiny" for DOMA under a prescribed
algorithm, but rather to require a closer than usual review based
in part on discrepant impact among married couples and in part on
the importance of state interests in regulating marriage. Our
decision then tests the rationales offered for DOMA, taking account
of Supreme Court precedent limiting which rationales can be counted
and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal
protection challenge to DOMA is foreclosed at the outset by Baker
v. Nelson, 409 U.S. 810 (1972). There, a central claim made was
that a state's refusal to recognize same-sex marriage violated
-11- federal equal protection principles. Minnesota had, like DOMA,
defined marriage as a union of persons of the opposite sex, and the
state supreme court had upheld the statute. On appeal, the Supreme
Court dismissed summarily for want of a substantial federal
question. Id.
Baker is precedent binding on us unless repudiated by
subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332,
344 (1975). Following Baker, "gay rights" claims prevailed in
several well known decisions, Lawrence v. Texas, 539 U.S. 558
(2003), and Romer v. Evans, 517 U.S.620 (1996),4 but neither
mandates that the Constitution requires states to permit same-sex
marriages. A Supreme Court summary dismissal "prevent[s] lower
courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions." Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not
resolve our own case but it does limit the arguments to ones that
do not presume or rest on a constitutional right to same-sex
marriage.
4 Lawrence struck down Texas' statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny--applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.
-12- Central to this appeal is Supreme Court case law
governing equal protection analysis. The Gill plaintiffs say that
DOMA fails under the so-called rational basis test, traditionally
used in cases not involving "suspect" classifications. The federal
defendants said that DOMA would survive such rational basis scrutiny
but now urge, instead, that DOMA fails under so-called intermediate
scrutiny. In our view, these competing formulas are inadequate
fully to describe governing precedent.
Certain suspect classifications--race, alienage and
national origin--require what the Court calls strict scrutiny, which
entails both a compelling governmental interest and narrow
tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995). Gender-based classifications invoke intermediate scrutiny
and must be substantially related to achieving an important
governmental objective.5 Both are far more demanding than rational
basis review as conventionally applied in routine matters of
commercial, tax and like regulation.
Equal protection claims tested by this rational basis
standard, famously called by Justice Holmes the "last resort of
constitutional argument," Buck v. Bell, 274 U.S. 200, 208 (1927),
rarely succeed. Courts accept as adequate any plausible factual
5 United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).
-13- basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
487-88 (1955), without regard to Congress' actual motives. Beach
Commc'ns, 508 U.S. at 314. Means need not be narrowly drawn to
meet--or even be entirely consistent with--the stated legislative
ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs
cannot prevail. Consider only one of the several justifications for
DOMA offered by Congress itself, namely, that broadening the
definition of marriage will reduce tax revenues and increase social
security payments. This is the converse of the very advantages that
the Gill plaintiffs are seeking, and Congress could rationally have
believed that DOMA would reduce costs, even if newer studies of the
actual economic effects of DOMA suggest that it may in fact raise
costs for the federal government.
The federal defendants conceded that rational basis
review leaves DOMA intact but now urge this court to employ the so-
called intermediate scrutiny test used by Supreme Court for gender
discrimination. Some similarity exists between the two situations
along with some differences, compare Frontiero v. Richardson, 411
U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for
categorization). But extending intermediate scrutiny to sexual
preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir.
2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined
-14- to create a major new category of "suspect classification" for
statutes distinguishing based on sexual preference. Cook rejected
an equal protection challenge to the now-superceded "Don't Ask,
Don't Tell" policy adopted by Congress for the military, pointing
out that Romer itself avoided the suspect classification label.
Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC
v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for
same-sex relationships would have far-reaching implications--in
particular, by implying an overruling of Baker, which we are neither
empowered to do nor willing to predict. Nothing indicates that the
Supreme Court is about to adopt this new suspect classification when
it conspicuously failed to do so in Romer--a case that could readily
have been disposed by such a demarche. That such a classification
could overturn marriage laws in a huge majority of individual states
underscores the implications.
However, that is not the end of the matter. Without
relying on suspect classifications, Supreme Court equal protection
decisions have both intensified scrutiny of purported justifications
where minorities are subject to discrepant treatment and have
limited the permissible justifications. And (as we later explain),
in areas where state regulation has traditionally governed, the
Court may require that the federal government interest in
intervention be shown with special clarity.
-15- In a set of equal protection decisions, the Supreme Court
has now several times struck down state or local enactments without
invoking any suspect classification. In each, the protesting group
was historically disadvantaged or unpopular, and the statutory
justification seemed thin, unsupported or impermissible. It is
these decisions--not classic rational basis review--that the Gill
plaintiffs and the Justice Department most usefully invoke in their
briefs (while seeking to absorb them into different and more rigid
categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v.
Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to
exclude from the food stamp program households containing unrelated
individuals. Disregarding purported justifications that such
households were more likely to under-report income and to evade
detection, the Court closely scrutinized the legislation's
fit--finding both that the rule disqualified many otherwise-eligible
and particularly needy households, and a "bare congressional desire
to harm a politically unpopular group." Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985), overturned a local ordinance as applied to the
denial of a special permit for operating a group home for the
mentally disabled. The Court found unconvincing interests like
protecting the inhabitants against the risk of flooding, given that
nursing or convalescent homes were allowed without a permit; mental
-16- disability too had no connection to alleged concerns about
population density. All that remained were "mere negative
attitudes, or fear, unsubstantiated by factors which are properly
cognizable in a zoning proceeding." Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the
Court struck down a provision in Colorado's constitution prohibiting
regulation to protect homosexuals from discrimination. The Court,
calling "unprecedented" the "disqualification of a class of persons
from the right to seek specific protection from the law," deemed the
provision a "status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate
state interests." Id. at 632-33, 635.
These three decisions did not adopt some new category of
suspect classification or employ rational basis review in its
minimalist form; instead, the Court rested on the case-specific
nature of the discrepant treatment, the burden imposed, and the
infirmities of the justifications offered. Several Justices have
remarked on this--both favorably, City of Cleburne, 473 U.S. at 451-
55 (1985) (Stevens, J., concurring), and unfavorably, United States
v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J.,
dissenting).
Circuit courts, citing these same cases, have similarly
concluded that equal protection assessments are sensitive to the
-17- circumstances of the case and not dependent entirely on abstract
categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential "rational basis" test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination.
United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi,
J., concurring) (citing City of Cleburne as an example). There is
nothing remarkable about this: categories are often approximations
and are themselves constructed by weighing of underlying elements.
All three of the cited cases--Moreno, City of Cleburne
and Romer--stressed the historic patterns of disadvantage suffered
by the group adversely affected by the statute. As with the women,
the poor and the mentally impaired, gays and lesbians have long been
the subject of discrimination. Lawrence, 539 U.S. at 571. The
Court has in these cases undertaken a more careful assessment of the
justifications than the light scrutiny offered by conventional
rational basis review.
As for burden, the combined effect of DOMA's restrictions
on federal benefits will not prevent same-sex marriage where
permitted under state law; but it will penalize those couples by
limiting tax and social security benefits to opposite-sex couples
6 E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).
-18- in their own and all other states. For those married same-sex
couples of which one partner is in federal service, the other cannot
take advantage of medical care and other benefits available to
opposite-sex partners in Massachusetts and everywhere else in the
country.
These burdens are comparable to those the Court found
substantial in Moreno, City of Cleburne, and Romer. Moreno, like
this case, involved meaningful economic benefits; City of Cleburne
involved the opportunity to secure housing; Romer, the chance to
secure equal protection of the laws on the same terms as other
groups. Loss of survivor's social security, spouse-based medical
care and tax benefits are major detriments on any reckoning;
provision for retirement and medical care are, in practice, the main
components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference
accorded to ordinary economic legislation in cases like Lee Optical
would not be extended to DOMA by the Supreme Court; and without
insisting on "compelling" or "important" justifications or "narrow
tailoring," the Court would scrutinize with care the purported bases
for the legislation. Before providing such scrutiny, a separate
element absent in Moreno, City of Cleburne, and
Romer--federalism--must be considered.
Federalism. In assailing DOMA, the plaintiffs and
especially the Commonwealth rely directly on limitations attributed
-19- to the Spending Clause of the Constitution and the Tenth Amendment;
the Justice Department, along with the Legal Group, rejects those
claims. In our view, neither the Tenth Amendment nor the Spending
Clause invalidates DOMA; but Supreme Court precedent relating to
federalism-based challenges to federal laws reinforce the need for
closer than usual scrutiny of DOMA's justifications and diminish
somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm
that has from the start of the nation been primarily confided to
state regulation--domestic relations and the definition and
incidents of lawful marriage--which is a leading instance of the
states' exercise of their broad police-power authority over morality
and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re
Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia,
388 U.S. 1, 7 (1967) (marriage).
Consonantly, Congress has never purported to lay down a
general code defining marriage or purporting to bind to the states
to such a regime. Rather, in individual situations--such as the
anti-fraud criteria in immigration law, 8 U.S.C.
§ 1186a(b)(1)(A)(i)--Congress has provided its own definitions
limited to the particular program or personnel involved. But no
-20- precedent exists for DOMA's sweeping general "federal" definition
of marriage for all federal statutes and programs.
Nevertheless, Congress surely has an interest in who
counts as married. The statutes and programs that section 3 governs
are federal regimes such as social security, the Internal Revenue
Code and medical insurance for federal workers; and their benefit
structure requires deciding who is married to whom. That Congress
has traditionally looked to state law to determine the answer does
not mean that the Tenth Amendment or Spending Clause require it to
do so.
Supreme Court interpretations of the Tenth Amendment have
varied over the years but those in force today have struck down
statutes only where Congress sought to commandeer state governments
or otherwise directly dictate the internal operations of state
government. Printz v. United States, 521 U.S. 898, 935 (1997); New
York v. United States, 505 U.S. 144, 188 (1992). Whatever its
spin-off effects, section 3 governs only federal programs and
funding, and does not share these two vices of commandeering or
direct command.
Neither does DOMA run afoul of the "germaneness"
requirement that conditions on federal funds must be related to
federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08
(1987). The requirement is not implicated where, as here, Congress
merely defines the terms of the federal benefit. In Dole, the
-21- Supreme Court upheld a condition by which federal funds for highway
construction depended on a state's adoption of a minimum drinking
age for all driving on state roadways. 483 U.S. at 205. DOMA
merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex
couples lawfully married does burden the choice of states like
Massachusetts to regulate the rules and incidents of marriage;
notably, the Commonwealth stands both to assume new administrative
burdens and to lose funding for Medicaid or veterans' cemeteries
solely on account of its same-sex marriage laws. These consequences
do not violate the Tenth Amendment or Spending Clause, but Congress'
effort to put a thumb on the scales and influence a state's decision
as to how to shape its own marriage laws does bear on how the
justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and
United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court
scrutinized with special care federal statutes intruding on matters
customarily within state control. The lack of adequate and
persuasive findings led the Court in both cases to invalidate the
statutes under the Commerce Clause even though nothing more than
rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements
about the need for scrutiny when examining federal statutes
intruding on regulation of state election processes. Nw. Austin
-22- Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7
cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA
a "considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and
welfare of their citizens").
True, these federalism cases examined the reach of
federal power under the Commerce Clause and other sources of
constitutional authority not invoked here; but a statute that
violates equal protection is likewise beyond the power of Congress.
See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that
DOMA intrudes broadly into an area of traditional state regulation,
a closer examination of the justifications that would prevent DOMA
from violating equal protection (and thus from exceeding federal
authority) is uniquely reinforced by federalism concerns.
DOMA's Rationales. Despite its ramifying application
throughout the U.S. Code, only one day of hearings was held on DOMA,
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm.
7 The majority, focusing on the related issue of fit, said that "a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating "because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination." Id. at 2520 (Thomas, J., concurring in part and dissenting in part).
-23- on the Constitution of the H. Comm. on the Judiciary, 104th Cong.
(1996) ("Hearing"), and none of the testimony concerned DOMA's
effects on the numerous federal programs at issue. Some of the
odder consequences of DOMA testify to the speed with which it was
adopted.8
The statute, only a few paragraphs in length, is devoid
of the express prefatory findings commonly made in major federal
laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400;
21 U.S.C. § 801; 29 U.S.C. § 151; id. § 1001; 42 U.S.C. § 7401.
Accordingly, in discerning and assessing Congress' basis for DOMA
our main resort is the House Committee report and, in lesser
measure, to variations of its themes advanced in the briefs before
us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
8 For example, DOMA's definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on anti-nepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.
-24- H.R. Rep. No. 104-664, at 12 (1996).
The penultimate reason listed above was not directed to
section 3--indeed, is antithetical to it--but was concerned solely
with section 2, which reserved a state's power not to recognize
same-sex marriages performed in other states. Thus, we begin with
the others, reserving for separate consideration the claim strongly
pressed by the Gill plaintiffs that DOMA should be condemned because
its unacknowledged but alleged central motive was hostility to
homosexuality.
First, starting with the most concrete of the cited
reasons--"preserving scarce government resources"--it is said that
DOMA will save money for the federal government by limiting tax
savings and avoiding social security and other payments to spouses.
This may well be true, or at least might have been thought true;
more detailed recent analysis indicates that DOMA is more likely on
a net basis to cost the government money.9
But, where the distinction is drawn against a
historically disadvantaged group and has no other basis, Supreme
Court precedent marks this as a reason undermining rather than
bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227
(1982); Romer, 517 U.S. at 635. The reason, derived from equal
9 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5 559/06-21-samesexmarriage.pdf.
-25- protection analysis, is that such a group has historically been less
able to protect itself through the political process. Plyler, 457
U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S.
144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by
the Legal Group's brief and several others, is to support
child-rearing in the context of stable marriage.10 The evidence as
to child rearing by same-sex couples is the subject of controversy,
but we need not enter the debate. Whether or not children raised
by opposite-sex marriages are on average better served, DOMA cannot
preclude same-sex couples in Massachusetts from adopting children
or prevent a woman partner from giving birth to a child to be raised
by both partners.
Although the House Report is filled with encomia to
heterosexual marriage, DOMA does not increase benefits to
opposite-sex couples--whose marriages may in any event be childless,
unstable or both--or explain how denying benefits to same-sex
couples will reinforce heterosexual marriage. Certainly, the denial
will not affect the gender choices of those seeking marriage. This
is not merely a matter of poor fit of remedy to perceived problem,
10 The House Report refers obliquely to the importance of heterosexual marriage in "encouraging responsible procreation and child-rearing," H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that "heterosexual marriage provides the ideal structure within which to beget and raise children." Hearing, supra, at 1 (opening statement of Rep. Canady).
-26- Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at
446-50, but a lack of any demonstrated connection between DOMA's
treatment of same-sex couples and its asserted goal of strengthening
the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is
one of DOMA's stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.
H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g.,
142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn)
(homosexuality "morally wrong").
For generations, moral disapproval has been taken as an
adequate basis for legislation, although usually in choices made by
state legislators to whom general police power is entrusted. But,
speaking directly of same-sex preferences, Lawrence ruled that moral
disapproval alone cannot justify legislation discriminating on this
basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided
in legislation, but Lawrence and Romer have undercut this basis.
Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group's brief
that, faced with a prospective change in state marriage laws,
Congress was entitled to "freeze" the situation and reflect. But
-27- the statute was not framed as a temporary time-out; and it has no
expiration date, such as one that Congress included in the Voting
Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original
expiration date and later extensions); City of Boerne, 521 U.S. at
533. The House Report's own arguments--moral, prudential and
fiscal--make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the
Hawaii Supreme Court's decision in Baehr, that state judges would
impose same-sex marriage on unwilling states. H.R. Rep. No.
104-664, at 5-6, 12, 16-17. But almost all states have readily
amended constitutions, as well as elected judges, and can protect
themselves against what their citizens may regard as overreaching.
The fear that Hawaii could impose same-sex marriage on sister states
through the Full Faith and Credit Clause, id. at 7-9, relates solely
to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or
any impairment of Baker, that the rationales offered do not provide
adequate support for section 3 of DOMA. Several of the reasons
given do not match the statute and several others are diminished by
specific holdings in Supreme Court decisions more or less directly
on point. If we are right in thinking that disparate impact on
minority interests and federalism concerns both require somewhat
more in this case than almost automatic deference to Congress' will,
this statute fails that test.
-28- Invalidating a federal statute is an unwelcome
responsibility for federal judges; the elected Congress speaks for
the entire nation, its judgment and good faith being entitled to
utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976)
(plurality opinion). But a lower federal court such as ours must
follow its best understanding of governing precedent, knowing that
in large matters the Supreme Court will correct mis-readings (and
even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge
that DOMA's hidden but dominant purpose was hostility to
homosexuality. The many legislators who supported DOMA acted from
a variety of motives, one central and expressed aim being to
preserve the heritage of marriage as traditionally defined over
centuries of Western civilization. See H.R. Rep. No. 104-664, at
12, 16. Preserving this institution is not the same as "mere moral
disapproval of an excluded group," Lawrence, 539 U.S. at 585
(O'Connor, J., concurring), and that is singularly so in this case
given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments
from a few individual legislators; but the motives of a small group
cannot taint a statute supported by large majorities in both Houses
and signed by President Clinton. Traditions are the glue that holds
society together, and many of our own traditions rest largely on
-29- belief and familiarity--not on benefits firmly provable in court.
The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would
alone have been justification enough for almost any statute. This
judicial deference has a distinguished lineage, including such
figures as Justice Holmes, the second Justice Harlan, and Judges
Learned Hand and Henry Friendly. But Supreme Court decisions in the
last fifty years call for closer scrutiny of government action
touching upon minority group interests and of federal action in
areas of traditional state concern.
To conclude, many Americans believe that marriage is the
union of a man and a woman, and most Americans live in states where
that is the law today. One virtue of federalism is that it permits
this diversity of governance based on local choice, but this applies
as well to the states that have chosen to legalize same-sex
marriage. Under current Supreme Court authority, Congress' denial
of federal benefits to same-sex couples lawfully married in
Massachusetts has not been adequately supported by any permissible
federal interest.
Hara's Health Benefits Claim. A distinct, if much
narrower, issue is raised by Dean Hara, one of the Gill plaintiffs.
Although the district court ordered the relief Hara sought for
Social Security lump-sum death benefits, the district court found
that relief on his second claim for health coverage required a
-30- further determination on a precondition that is the subject of a
proceeding earlier brought by Hara and now pending in the Federal
Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir.
docketed Mar. 17, 2009).
Hara was married under Massachusetts law to a now-
deceased Congressman, and Hara has sought to be enrolled as a
surviving spouse for health benefits under the Congressman's Federal
Employees' Health Benefit Plan ("FEHBP"). For this, (1) Hara would
have to be an eligible "annuitant" under the annuity statute, and
(2) the Congressman had to have enrolled in the health benefit plan
for "self and family," which he had not done. 5 U.S.C. § 8341; 5
C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity
benefit, the Office of Personnel Management ("OPM") had previously
ruled that Hara was ineligible to receive an annuity both because
he was not a spouse under DOMA and because the Congressman had not
elected such coverage. Such determinations as to annuities are
reviewed exclusively by the Merit Systems Protection Board ("MSPB"
or "Board") and then exclusively by the Federal Circuit. 5 U.S.C.
§§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely
because of DOMA, finding the failure to elect coverage not to bar
annuitant status. Hara sought further review in the Federal
Circuit, and that case has been stayed pending resolution of the
-31- DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010
order staying proceedings). Thus, now--as at the time the district
court issued its judgment--a Board determination is in force that
Hara lacks annuitant status.
OPM has separately denied Hara's claim for FEHBP health
enrollment because of the Congressman's failure to elect "self and
family" coverage. Although the district court found DOMA
unconstitutional, it refused to resolve Hara's health coverage claim
now because it still depends on Hara establishing eligibility for
annuitant status, which is at issue in his pending Federal Circuit
appeal. Whether or not Hara lacked standing, the district court
showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to
recognize his annuitant status because the Board has waived or
forfeited any objection based on the failure to elect spousal
survivor coverage; but the Department of Justice does not concede
the point, which the Federal Circuit presumably will resolve. If
Hara prevails there, district court injunctive relief to secure his
health coverage is likely to be unnecessary, but our affirmance is
without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the
reasons and to the extent stated above. Anticipating that
certiorari will be sought and that Supreme Court review of DOMA is
highly likely, the mandate is stayed, maintaining the district
-32- court's stay of its injunctive judgment, pending further order of
this court. The parties will bear their own costs on these appeals.
It is so ordered.
-33- ADDENDUM
SECTION. 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
"1738C. Certain acts, records, and proceedings and the effect thereof.".
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
-34- (b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
"7. Definition of 'marriage' and 'spouse'."
-35-