I've now written about states where same-sex marriage has been legalized and states where it has been banned. But I haven't written about the biggest marriage ban of all, the reason why even in the states where it's legal, it doesn't quite count: the Defense of Marriage Act.
In 1996, the United States Congress passed a bill called the Defense of Marriage Act. It passed by a wide margin, with very little debate and no real fact finding effort to determine its implications. The law had two main components:
First, DOMA dictated that no state would be required to recognize a same-sex marriage performed in another state. No state at the time had as yet legalized same-sex marriage; but the possibility at the time that Hawaii was soon going to do so (it didn't) prompted this provision to ensure that couples wouldn't flock to marry in Hawaii and then bring their legal marriages back to their home states. In actuality, this provision was unnecessary and served only to highlight the animus behind the entire concept of the bill. The legal truth is that no state is required to recognize any marriage performed by another state. (So if you're married and currently reside in a state other than the one you married in, be grateful that states have historically turned a blind eye to this issue.)
The other provision of DOMA was the truly insidious one. It stated that for any and all purposes at the Federal level, a marriage was to be defined exclusively as an institution for a man and a woman. This marked the first time in the entire history of the United States that the government passed a law enacting a Federal definition of marriage. Even in the heyday of laws against interracial marriages, no such law existed at the Federal level.
The consequences of this law would come into play eight years later, when Massachusetts became the first state to legalize same-sex marriages. Put simply, any same-sex couple married in Massachusetts is not married in the eyes of the United States. This brings about a truly tangled web of dual realities.
When the couple files their taxes, they must file as "married" with the state, and must each file "single" to the U.S.
If one spouse dies, the surviving spouse does have control over funeral arrangements, and is able to retain custody of any children the couple had without any legal battle. But the spouse must pay inheritance taxes on anything willed to survivor, taxes an opposite-sex couple would not have to pay. The survivor cannot file to collect Social Security benefits.
"Don't Ask, Don't Tell" has been repealed and gays can serve openly in the military. But if such a soldier is killed in action, the spouse can collect no benefits.
If a gay person marries a spouse from another country, that spouse doesn't receive U.S. citizenship, and can be deported by the government.
The list goes on and on. And on. In fact, a study determined that there are 1,138 federal laws that reference marriage, and none of these laws can be applied to a married same-sex couple. Furthermore, several state laws actually derive from federal law, creating the situation that even in a state that recognizes same-sex marriage, even when dealing with a state level law, the federal law of DOMA may restrict the state from applying its own law.
There are two possible ways for DOMA to be reversed. One would be if Congress passed another law to repeal it. Such a law has been proposed, called the Respect for Marriage Act (ROMA). But the law has only 33 pledged co-sponsors in the Senate right now, well short of the 51 for theoretical passage (and the 60 to overcome a likely filibuster). Things are even worse in the House, where Republicans currently hold a majority of the 435 members, and only one Republican in the entire body has pledged support for the bill, Ileana Ros-Lehtinen of Florida. Put simply, the legislative repeal of DOMA isn't going to happen any time soon.
The other avenue would be for DOMA to be declared unconstitutional by the Supreme Court -- and this race may be much closer to the finish line. Several cases from states with marriage equality have been slowly working their way up the ladder of the court system over the past few years, and now lay at the Supreme Court's door.
A consolidated pair of cases from Massachusetts (the First Circuit) has been ruled on by a Circuit Court, where a three-judge panel (including two judges nominated by Republican presidents) unanimously found DOMA unconstitutional. That case has been filed with the Supreme Court, who will decide upon returning from their recess this fall whether to hear the case.
Another case from the Ninth Circuit has been ruled on at the lowest level, with a judge again striking down DOMA as unconstitutional. The opposition filed an appeal with the higher appeals court, and the U.S. Department of Justice countered by filing a rare motion to skip that step and proceed directly to the Supreme Court, possibly consolidating the case with the two from Massachusetts.
Still another case, this from New York (the Second Circuit) has passed the first level of review, where again, the judge struck down DOMA as unconstitutional. This one carries extra "sizzle," if you will, as it involves a woman of 83 who was forced to pay over $300,000 in inheritance taxes on property left to her by her deceased wife. Her lawyers have followed the DOJ's lead and also petitioned to skip directly to the Supreme Court, citing their plantiff's advanced age and poor health; they say that she may not live to see justice if the process isn't accelerated.
But wait, there's more! In a fifth DOMA related case out of Connecticut, ruled on just recently at the end of July, another Republican nominated judge found DOMA to be unconstitutional, writing an extraordinary 104-page opinion skewering every argument raised in the defense of DOMA. (You can read it for yourself if you like, some very dense but invigorating reading.)
Legal scholars seem to agree that with all these cases pending, all these challenges from Circuits all over the United States, the Supreme Court will be forced to accept one or more of these cases in the coming session. They'll likely end up hearing arguments some time this winter, and issuing a ruling by next June. But there is some trepidation in approaching the Supreme Court on this right now, given the current makeup and disposition of the Court.
That leads to an entirely new aspect of the marriage saga, but since I've gone on at considerable length already in this post, let me stop for now. I'll take up the issue of the Supreme Court in my next post.
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