By Kate Paine, Esq.
Earlier in the month, two firsts occured in the fight against the Defense of Marriage Act (commonly referred to as “DOMA”). First, on Monday, April 2, 2012, five legally-married, bi-national (one spouse is not a U.S. citizen), same-sex couples filed a lawsuit challenging DOMA’s constitutionality (legality) as applied to all legally-married, bi-national, same-sex couples trying to legally remain together in the United States. Then, on Wednesday, April 4, 2012, the First Circuit Court of Appeals became the first federal court of appeals to hear a case involving DOMA’s constitutionality.
Even though DOMA has once again taken legal center-stage, many people whose lives are affected by the law have never heard of it. This post is the first in a multi-part series designed to explain the origin of the law, its purpose and effects, and the legal war currently being waged in the hopes that either Congress repeals the law or the Supreme Court determines that it is unconstitutional (and unenforceable) because it unlawfully discriminates against legally-married gay couples.
First, it is important to understand that, unlike what you may have heard, DOMA does not prohibit or prevent states from allowing same-sex marriage. State governments, not Congress (i.e. the federal government), have the power to create laws regarding who may marry. Instead, DOMA places certain limits on the rights under federal law of same-sex couples legally married under state law.
The first of DOMA’s two main sections (Section 2) essentially says that no state is required to recognize a same-sex marriage, even though the marriage was lawfully entered into in another state. So, for example, a state like Pennsylvania, which has a law prohibiting same-sex couples from marrying, does not have to recognize the marriage of two men or two women who legally wed in any of the states currently marrying same sex couples (Massachusetts, Vermont, Connecticut, New Hampshire, New York, and Iowa).
DOMA’s second main section (Section 3), which is the provision most often challenged in court, says that, for federal purposes, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” means only a person of the opposite sex who is a husband or a wife. As a result, whenever a provision in a federal law contains the word “marriage” or “spouse,” the provision will apply, respectively, only to an opposite-sex marriage or an opposite-sex husband/wife.
According to a study done in 2004, the impact of Section 3 is that lawfully-married same-sex couples are denied at least 1,138 federal benefits, protections, rights, or responsibilities. The recent deadline for filing taxes presents a timely example of one of the federal benefits legally-married same-sex couples are denied. State and federal tax forms allow an individual to file as “single,” “married filing jointly” or “married filing separately,” which, in turn, may affect the amount of money an individual or a couple has to pay the government or will be refunded by the government. Because, for federal purposes, only an opposite-sex couple constitutes a “married couple,” same-sex spouses lawfully married under state law may only select the “single” filing status on their federal tax return.
Another example comes from the Federal Employees Health Benefits Program. This Program provides health insurance to federal civilian employees, like postal workers, and their family members. Under the Program, “a member of family” is defined as either “the spouse of an employee” or “an unmarried dependant child under 22 years of age.” Because this Program was enacted by a federal law, and because Section 3 of DOMA says that any federal law using the term “spouse” means only a person of the opposite sex who is a husband or a wife, a same-sex individual to whom the federal civilian employee is legally married will not qualify for health insurance under the Program.
Interestingly, DOMA represents the first time that Congress has ever created a federal definition of the words “marriage” or “spouse.” Before 1996 (the year in which Congress enacted DOMA), the federal government had always deferred to state definitions of marriage in determining whether a couple seeking benefits under a federal law was “married.” For example, if state X allowed individuals to marry at age sixteen, whereas state Y required individuals to be at least eighteen years-old, marriages between sixteen year-olds entered into in state X and marriages between eighteen year-olds entered into in state Y were both considered valid marriages under federal law. So, what caused Congress to change its historic respect for states’ determination of what constitutes a valid marriage?
Commentators and judges have noted that DOMA came on the heels of a 1993 case (Baehr v. Lewin) in which the Hawaii Supreme Court indicated that Hawaii’s state constitution might require the state to allow same-sex couples to marry. As discussed previously, DOMA does not affect a state’s ability to legalize same-sex marriage in that state. Nevertheless, the Congressional record (which contains the transcript of the discussions between the members of Congress when determining whether to pass DOMA) makes clear that Congress, as a whole, was driven by the desire to defend “the institution of traditional heterosexual marriage,” in part because it feared that the recognition of same-sex marriages might be “the final blow to the American family.” The record is also filled with statements reflecting the stereotypes members of Congress had about, and the hostility they felt toward, non-heterosexual couples and individuals.
If you are like me, then the one thing that you remember from your high-school American History class is that the government is not allowed to discriminate against a group of people just because (whether secretly or openly) it does not like or approve of that group. Because this is exactly what DOMA seems to do, you may be wondering how Congress was able to pass such a law and how such law is still on the books.
Stay tuned, as this will be the subject of the next post in our DOMA series. Of course, feel free to leave a comment below if you have any questions about, or reactions to, what has been discussed so far.