The U.S. District Court for the Northern District of California,
in an opinion dated May 24, 2012, holds that Section 3 of the
Defense of Marriage Act, which defines "marriage," is
unconstitutional to the extent that it limits same-sex couples from
participation in the long-term care insurance program maintained by
the California Public Employees' Retirement System.
Article 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. §
7, defines "marriage" to mean "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 wife." Section 7702B(f)(2)(C) of the Internal
Revenue Code of 1986 (IRC) operates to deny the tax benefits of a
state-maintained long-term care plan if it offers benefits to
individuals other than those specifically identified in that
section. A "spouse" of an employee is permitted to
receive benefits under such plan, but a "registered domestic
partner" of the employee is not permitted to receive such
benefits. Section 3 of DOMA would operate to exclude same-sex
spouses from the definition of "spouse" for this
In Michael Dragovich et. al. v. United States, the
plaintiffs contended that Section 3 of DOMA and IRC § 7702B(f)
violate the Constitution's guarantee of equal protection and
substantive due process by barring same-sex legal spouses and
registered domestic partners of California public employees from
enrollment in the California Public Employees' Retirement
System (CalPERS) long-term care plan, even though opposite-sex
legal spouses are permitted to enroll. The plaintiffs moved for
summary judgment on their claims.
The Obama administration has stated that it will not defend the
validity of Section 3 of DOMA against equal protection challenges
by same-sex spouses. Because this case involved such a challenge,
the court granted the Bipartisan Legal Advisory Group of the United
States House of Representatives (BLAG) leave to intervene to defend
the law. BLAG intervened and opposed the plaintiff's motion for
summary judgment and cross-moved for summary judgment that the
provision is constitutional.
The court analyzed the constitutionality of Section 3 of DOMA to
same-sex legal spouses (under California law) and IRC §
7702B(f) to registered domestic partners separately, but reached
the same conclusion as to both. It 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. It permanently enjoined CalPERS
from denying plaintiff class members enrollment in the CalPERS
long-term care plan on the basis of Section 3 of DOMA or IRC §
7702B(f)'s exclusion of same-sex spouses and registered
domestic partners, respectively. It also enjoined the United States
from disqualifying the CalPERS long-term care plan under IRC §
7702B(f) based on CalPERS compliance with the terms of the
The court does not hold Section 3 of DOMA unconstitutional for
all purposes. The court's reasoning for holding Section 3 of
DOMA unconstitutional as it applies to CalPERS long-term care plan
could make the decision, if sustained on appeal, far reaching.
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