On May 31, 2012, the US Court of Appeals for the First Circuit issued an opinion in Massachusetts v. United States Department of Health & Human Services. One key issue was whether Section 3 of the Defense of Marriage Act (DOMA), defining marriage as between a man and a woman and thereby denying federal benefits to same-sex couples married under state law, was constitutional.

Section 3 of DOMA states in part that under federal law, "'marriage' means only a legal union between one man and one woman as husband and wife." Although DOMA does not invalidate same-sex marriages in states where same-sex marriage is legal, it does prevent same-sex married couples from receiving federal benefits that are otherwise available to heterosexual married couples, including Social Security survivor benefits and health insurance benefits for federal employees.

In these consolidated cases, the plaintiffs, seven same-sex couples lawfully married in Massachusetts, sued to enjoin federal agencies and officials from enforcing DOMA to deprive them of federal benefits available to different-sex married couples in Massachusetts. The Commonwealth of Massachusetts brought a companion case, fearing the law would revoke federal funding for programs tied to DOMA's definition of marriage.

The district court found Section 3 of DOMA unconstitutional under the Equal Protection Clause, and in the companion case held Section 3 violated the Spending Clause and the Tenth Amendment of the US Constitution. Although the district court enjoined federal officials and agencies from enforcing Section 3, it stayed injunctive relief pending the defendants' appeals.

The First Circuit affirmed the district court's decision, holding that DOMA's denial of federal benefits to same-sex couples who were lawfully married was not adequately supported by any permissible federal interest. However, the court continued the district court's stay of its injunctive judgment pending US Supreme Court review of DOMA.

Race, national origin and gender are traditionally analyzed under more rigorous standards than a rational basis standard (for race and national origin, a strict scrutiny standard and for classifications dealing with gender, an intermediate scrutiny standard). The First Circuit found that DOMA was valid under the rational basis standard, contrary to the plaintiffs' claim, but refused to extend the level of scrutiny to intermediate scrutiny, as the defendants urged.

However, the court ultimately held that DOMA violated the Equal Protection Clause even if Congress had a rational basis to enact it. The court relied on three prior cases in which the US Supreme Court struck down laws on equal protection grounds without relying on suspect classifications or the levels of scrutiny. Each of these cases involved a group of persons who were historically disadvantaged or unpopular where the justification for the laws invalidated was thin or unsupported.

The First Circuit ultimately determined that disparate impact on minority interests required more than deference to Congress' rational basis for enacting DOMA. Under this analysis, the court concluded:

On the state sovereignty issue, although the court noted DOMA did not violate the Tenth Amendment or the Spending Clause, the court found federalism concerns reinforced a closer examination of DOMA's justifications, as DOMA "intrudes broadly" into what is traditionally an area of state regulation.

Although employers should be aware of the First Circuit's conclusion that DOMA is unconstitutional, this decision is stayed for now pending US Supreme Court review of DOMA, which would seem likely. A US Supreme Court decision on DOMA could have far-reaching consequences for employers that offer same-sex benefits, especially as to tax issues, given the number of federal laws that affect benefits (which include the Internal Revenue Code, ERISA and HIPAA).