Defense of Marriage Act
| It's not just|
a good idea
The Defense of Marriage Act (commonly abbreviated DOMA) is a United States law that assaults marriage by allowing individual states to ignore legal marriages enacted in other states. It also sets the federal definition of marriage as between one man and one woman.
 Full faith and credit: the conservative dilemma
In 1996, conservatives were faced with a problem. They were traditionally the advocates of "states rights", where the issues were gun ownership and symbols of racism, but gay marriage rights turned the tables on their heads.
The problem was, some states were in the throes of legalizing same-sex marriage, civil unions, or related concepts, which are apparently the only great evils that America faces. Federalism grants the states this right, to experiment with the edge of the law, even when the remainder of the sister states seem recalcitrant. Hailed as one of the great benefits of the American system by Justice Brandeis, this concept seemed likely to allow gay marriages to filter through the rest of the states, because sister states are required to give the acts and judgments of another state "full faith and credit." The Constitutional mandate is:
“”Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Hence the dilemma. As one of the goals of the United States Constitution is to, well, "unite the States," this clause requires states to honor judgments from other states - marriages and similar contracts being among them. Without this basic respect for another state's judgments, the ability of couples married in one state to enjoy the same privileges in other states would quickly deteriorate. But, to conservatives, gay marriage must be "contained," just like communism. So how to contain it? The solution came in 1996, sponsored by Newt Gingrich.
From Section 2: 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.From Section 3: 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.
To summarize, Section 2 prevents states from being forced to recognize same-sex marriages performed in other states, and Section 3 prevents the federal government from recognizing any same-sex marriages at all.
The Defense of Marriage Act reads the Full Faith and Credit clause through this chain of reasoning:
- Congress may prescribe how faith and credit are given.
- Congress may therefore prescribe that no faith and credit are given.
- Therefore, Congress may provide that gay marriages are given no faith and credit.
This argumentation effectively circumvents the Full Faith and Credit clause's commandment for national unity, and eviscerates the plain meaning of the text. While the clause's clear intent is to provide for "full faith," Congressional reasoning was that the discretion in implementation of such credit provided by the Constitution is equivalent to plenary power, empowering Congress to disrupt federal unity where appropriate. Ironically, this warped statutory interpretation fails even Justice Scalia's test of "textualism," predicated on plain meaning: one need not even look outside the words of the Constitution to see the failures of DOMA's logic. Additionally, section 2 of the DOMA is also subject to due process and equal rights analysis because, as amendments, the 5th and 14th amendments limit any plenary power that Congress might otherwise have had. As wholly unconstitutional, and a blatant attack on the national value of unity, the Defense of Marriage Act is destined to have a short, if infuriating, life.
 Ramifications of DOMA
While this life remains, though, the ramifications of DOMA are vast. A homosexual couple in the United States of America may marry in Massachusetts, and travel to Nevada... however, if a cause of action arises in Nevada which would require the other spouse to take advantage of Nevada's laws, Nevada is free under DOMA to refuse to recognize the marriage, potentially denying members of the marriage even basic legal rights. An egregious example is the "Wrongful Death Statute": at common law, a surviving spouse may not sue for the death of his or her spouse, since the cause of action is said to die with the individual. This horrible result is corrected by statutory law, and every American state has a "wrongful death statute" of some kind. However, in a wrongful death suit in Nevada, arising from the death of a party to a homosexual marriage, Nevada courts would be free under DOMA to deny the surviving spouse the right to sue. Under conflict-of-law rules, this miscarriage of justice could not be cured by suing back in the state of marriage: conflict rules would require the selection of Nevada law, which would then toss the lawsuit, barring the surviving spouse from any recovery.
The result created by DOMA is also in clear contravention of ordinary conflict-of-law rules, under which the law of the married couples' home state governs their rights nationwide, since DOMA allows any state to refuse to recognize a marriage wherever they so please.
Same-sex couples pay a significant amount of additional taxes, since they can't file federal taxes jointly. This is even more complicated in states where same-sex marriages is legal and state taxes can be filed together. Furthermore, a married partner does not have to pay inheritance taxes when their spouse dies. A surviving gay spouse is treated as "single" and automatically loses half the money.
A little-known effect of DOMA is that a legally married person can't sponsor his or her foreign spouse for a green card in order for them to become a US citizen (unlike a mail-order bride from Russia). Visitor visa only have a limited duration and are difficult to obtain. Frequent visits to the US arouse suspicions and even mentioning the marriage would likely lead to a refusal at customs due to an intent to stay. The whole visa process - in addition to overseas flights - is also very expensive. This either forces couples to deal with lengthy separations or the US partner into exile. There are several tens of thousands of such bi-national same-sex couples.
 Legal challenges
U.S. District court in Boston has ruled Section 3 of DOMA unconstitutional in two separate cases: Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services. The basis of the ruling is that Congress impermissibly infringed on the power of individual States to regulate marriage (implied in the Tenth Amendment to the U.S. Constitution), and also violated the Equal Protection Clause by creating two classes of marriage for no reason (same-sex and opposite marriages).
Only Section 3 (federal recognition of same-sex marriage) has been challenged successfully, and the ruling appears to apply only to married couples residing in the state of Massachusetts (where the court has jurisdiction). However, on October 12, 2010, the decision was appealed.
On February 25, 2010, the Obama administration's Department of Justice declared that it would no longer defend Section 3 of DOMA. The Bipartisan Legal Advisory Group (BLAG) is representing the Republican-controlled House and is now preparing a defense of this section of DOMA in all relevant cases.
As of June 7, 2012, 2 separate Federal Courts (New York and the Boston Case above), and the 1st US Court of Appeals have ruled that DOMA is unconstitutional.
- ↑ Only Massachusetts, Iowa, Vermont,New York,New Hampshire and Connecticut have legalized full "marriage." Other states - New Jersey and Hawaii among them - have legalized civil unions.
- ↑ See the Values Voter Debate 2007 for how this issue receives disproportionate attention.
- ↑ U.S. CONSTITUTION, ART. V § 1.
- ↑ And, to the liberals' pained sufferance, signed by Bill Clinton.
- ↑ Restatement Second of the Conflict of Laws, § 284.
- ↑ The ruling in Gill v. Office of Personnel Management
- ↑ The ruling in Commonwealth v. United States Department of Health and Human Services
- ↑ http://www.metroweekly.com/poliglot/2010/10/breaking-part-2-doj-to-appeal.html