The Defense of Marriage Act, or DOMA, is a 1996 law that defines marriage as the legal union of one man and one woman. Sixteen years later, the question (as with the recent healthcare battle) is whether this federal law is constitutional or not — more specifically, whether the federal government has the right to interfere with the workings of state governments.
The law stipulates that no U.S. state is required to recognize a same-sex marriage from another state, therefore the federal government must deny benefits to gay couples who are married in states that allow unions. This excludes same-sex spouses from benefits like Social Security payments, health insurance and burial services.
While the law originally passed both houses of Congress with large majorities, now Walter Dellinger, the acting United States solicitor general in the Clinton administration, explains:
Until DOMA is repealed or invalidated…no gay couple is fully married.
While the road to repeal must end at the Supreme Court, the decision from the Federal appeals court in Boston was the first step. The three judge panel unanimously struck down the section of the law concerning marriage benefits at the end of May this year.
Why? The judges found no good reason for treating some married couples differently from others. In legal terms, they were talking about equal protection rights under the 14th amendment. Two federal judges in California also cited the 14th amendment when they ruled that the law violates the due-process and civil rights of legally married same-sex couples. So far, so good. But, the Boston court was also the first federal appeals to agree with a lower court judge who concluded in 2010 that the law interferes with the right of a state to define marriage. States’ rights and gay marriage? Now there’s an unlikely couple.
State law traditionally governs marriages, explained Judge Michael Boudin.
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.
The original trial judge in Massachusetts, Joseph L. Tauro, went one step further explicitly arguing that DOMA oversteps Congressional power to attach conditions to federal grants to states.
An example of this is when the Department of Veterans Affairs threatened to take back $19 million from Massachusetts if it went through with the burial of a veteran’s same-sex spouse in a cemetery that was built with federal money.
Now, while the Appeals court rejected this particular argument, that was before anyone saw the medicaid portion of the healthcare decision. In that recent decision, the federal government’s attempt to terminate Medicaid funds for states was struck down based on the reasoning that states should have the choice of whether or not to join the Medicaid expansion.
And the similarities with the recent healthcare argument don’t end here. When DOMA reaches the Supreme Court next term, we’ll be treated to a rematch between the very same lawyers who battled it out over the Affordable Care Act.
Paul D. Clement, the lawyer who lost the health care case, has asked the justices to hear an appeal from the Boston decision and uphold the marriage law:
The House has been forced into the position of defending numerous lawsuits challenging DOMA across the nation…That is a role for which the Justice Department — not the House — is institutionally designed.
On the other side, Solicitor General Donald B. Verrilli Jr. will ask the justices to strike down DOMA. This puts the lawyer who won on healthcare in the awkward position of attacking rather than defending a law enacted by Congress. Just to recap, while the Justice Department defended the marriage law early in the Obama administration, Attorney General Eric Holder has now announced that the administration will continue to enforce the law but it will no longer defend it in court. In fact, the Justice Department has filed two petitions for writs of certiorari to the Supreme Court.
The Supreme Court is expected to hear the case in January 2013, with arguments based around the powers of Congress to regulate state activity and attach conditions to federal grants to states. Unfortunately for many who will be following the fate of DOMA closely, this case will not consider the part of the law that says states do not need to recognize same-sex marriages from other states and the court will not hear arguments about a constitutional right to same-sex marriage. Still, the use of a federalist argument in support or same-sex marriage is already revolutionary. What will the newly reinvigorated court do?
- How Would John Roberts Rule on Gay-Marriage Cases? (newyorker.com)