Defense of Marriage Act

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For other uses of "Defense of Marriage Act", see Defense of marriage amendment.
Defense of Marriage Act
Great Seal of the United States.
Acronym DOMA
Enacted by the 104th United States Congress
Effective September 21, 1996
Citations
104-199
Stat. 110 Stat. 2419 (1996)
Codification
U.S.C. sections created 28 U.S.C. § 1738C, 1 U.S.C. § 7
Legislative history
Major amendments
Supreme Court cases
None

The Defense of Marriage Act (DOMA) (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is a United States federal law that defines marriage as the legal union of one man and one woman. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996.

Under the law, no U.S. state or other political subdivision of the U.S. may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts court cases and a California bankruptcy court case, all of which are under appeal. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).

Contents

[edit] Background

The issue of same-sex marriage attracted public attention only rarely until the 1980s. A sympathetic reporter heard several gay men raise the issue in 1967 and described it as "high among the deviate's hopes".[1] In one early incident, gay activist Jack Baker brought suit in 1970 after being denied a marriage license to marry another man and in Baker v. Nelson the Minnesota Supreme Court ruled that limiting marriage to opposite-sex couples did not violate the United States Constitution. He later changed his legal name to Pat Lynn McConnell and married his male partner in 1971.[2][3] A 1972 off-Broadway play, Nightride, depicted, in the author's words, "a black-white homosexual marriage".[4] In 1979, Integrity, an organization of gay Episcopalians, raised the issue as the Episcopal Church in the U.S. considered a ban on the ordination of homosexuals as priests.[5] The New York Times said the question was "all but dormant" until the late 1980s when, according to gay activists, "the AIDS epidemic ... brought questions of inheritance and death benefits to many people's minds."[6] In May 1989, Denmark established "registered partnerships" that granted same-sex couples many of the rights associated with marriage.[6] In September 1989, the State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.[6] New York's highest court ruled that two homosexual men qualified as a family for the purposes of New York City's rent-control regulations.[6] Within the movement for gay and lesbian rights, a debate between advocates of sexual liberation and of social integration was taking shape, with Andrew Sullivan in 1989 publishing an essay "Here Comes the Groom" in The New Republic in August 1989 arguing for same-sex marriage: "A need to rebel has quietly ceded to a desire to belong", he wrote.[3]

Gary Bauer, head of the Family Research Council, predicted the issue would be "a major battleground in the 1990s".[6] In 1991, Georgia Attorney General, Michael J. Bowers withdrew a job offer made to a lesbian who planned to marry another woman in Jewish wedding ceremony.[7] A committee of the Lutheran Church released a report in 1993 after four years of study that described the possibility that homosexuals were capable of "the loving permanent commitment that we think is at the heart of marriage". The Lutheran Conference of Bishops responded: ""There is basis neither in Scripture nor tradition for the establishment of an official ceremony by this church for the blessing of a homosexual relationship."[8] In a critique of radicalism in the gay liberation movement, Bruce Bawer's A Place at the Table (1993) advocated the legalization of same-sex marriage.[9]

In the 1993 case Baehr v. Miike the Supreme Court of Hawaii ruled that the state must show a compelling interest in prohibiting same-sex marriage.[10] This prompted concern among opponents of same-sex marriage that same-sex marriage might become legal in Hawaii and that other states would recognize or be compelled to recognize those marriages under the Full Faith and Credit Clause of the United States Constitution.

[edit] Text

The main provisions of the act are as follows:[11]

Section 2. Powers reserved to the states
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.
Section 3. Definition of marriage
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.

[edit] Enactment

Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it in the House of Representatives on May 7, 1996. Senator Don Nickles of Oklahoma introduced it in the Senate.[12] Its Congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."[13] Nickles said: "If some state wishes to recognize same-sex marriage, they can do so". He said the bill would insure that "the 49 other states don't have to and the Federal Government does not have to."[12] In opposition to the bill, Colorado Rep. Patricia Schroeder said: "You can't amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash."[12] Barr countered that Article IV Sec. 1 of the Constitution grants Congress power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other states' acts.[12]

The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions."[14] The Democratic Party platform that year did not mention DOMA or marriage.[15] In a June 1996 interview in the gay and lesbian magazine The Advocate, Clinton said: "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered."[16] He also wrote that "raising this issue is divisive and unnecessary."[17]

Some Democrats viewed the legislation as politically motivated rather than a response to societal developments. Sen. Ted Kennedy of Massachusetts called DOMA the "Endangered Republican Candidates Act"[18] and said it was "a mean-spirited form of legislative gay-bashing designed to inflame the public four months before the November election."[19] Gay and lesbian rights organizations found there was little time to lobby in opposition, because the Clinton administration preferred to have DOMA become law as quickly as possible and not become an issue in the fall presidential campaign.[18] Kennedy led an effort to pass hiring and employment protection for gays and lesbians, the Employment Non-Discrimination Act (ENDA), in concert with DOMA, but the effort failed in the Senate by one vote.[19]

The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress, passing by a vote of 85–14 in the Senate[20] and a vote of 342–67 in the House.[21] Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent),[22] and Democratic Representatives voted for it 188 to 65, with 15 not participating.[23] All Republicans in both houses voted for the bill with the sole exception of the one gay Republican, Rep. Steve Gunderson of Wisconsin.[24] On the day it passed the House, a White House spokesman called the legislation "gay baiting".[25] Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996.[18] The White House released a statement in which Clinton said "that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation".[18]

[edit] Impact

The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor".[26] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[27] With respect to Social Security, housing, and food stamps, the GAO found that "recognition of the marital relationship is integral to the design of the program[s]." The other major categories the GAO identified were veteran's benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military. Among many specifics, it noted the rights of the widow or widower of the creator of a copyrighted work and certain financial disclosure requirements that include the spouses of members of Congress and certain officers of the federal government. Education loan programs and agriculture price support and loan programs also implicate spouses. Financial aid to "family farms" is restricted to those in which "a majority interest is held by individuals related by marriage or blood."[26]

Because the federal Employee Retirement Income Security Act (ERISA) controls most employee benefits provided by private employers, DOMA prevents most employers in the private sector from providing health care, pension, and disability benefits to same-sex spouses on an equal footing with opposite-sex spouses. ERISA does not affect employees of state and local government or churches, nor does it extend to such benefits as employee leave and vacation.[28]

Under DOMA, persons in same-sex marriages are not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages can not petition for their spouses, nor can they be accompanied by their spouses into the U.S. on the basis of a family or employment-based visa. A non-citizen in such a marriage can not use it as the basis for obtaining a waiver or relief from removal from the U.S.[29]

Following the end of the U.S. military's ban on service by open gays and lesbians, "Don't ask, don't tell," in September 2011, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, noted that DOMA limited the military's ability to extend the same benefits to military personnel in same-sex marriages as their peers in opposite-sex marriages received, notably health benefits.[30] Same-sex spouses of military personnel are denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.[31]

[edit] Political debate

The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.[32] The Democratic Party platform that year did not mention DOMA or marriage in this context.[33] Both Barr and Clinton later regretted their support and called for DOMA's repeal.[34]

[edit] Bush Administration

In 2004, President George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DOMA vulnerable: "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity."[35] In January 2005, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would survive a constitutional challenge.[36]

The Bush administration defended DOMA against several legal challenges, including a Washington state bankruptcy case, In re Kandu,[37] an attempt by two women married in Massachusetts to have their marriage recognized in Florida, Wilson v. Ake.[38] and a similar Oklahoma case, Bishop v. Oklahoma.[39]

[edit] Obama administration

President Barack Obama's 2008 political platform endorsed the repeal of DOMA.[40] On June 12, 2009, the Justice Department issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America, continuing its longstanding practice of defending all federal laws challenged in court.[41] On June 15, 2009, Human Rights Campaign President Joe Solmonese wrote an open letter to Obama that asked for actions to balance the DOJ's courtroom position: "We call on you to put your principles into action and send legislation repealing DOMA to Congress."[42] A representative of Lambda Legal, an LGBT advocacy group, noted that the Obama administration's legal arguments omitted the Bush administration's assertion that households headed by opposite-sex spouses were better at raising children than those headed by same-sex spouses.[41]

On February 23, 2011, Attorney General Eric Holder released a memo regarding two lawsuits challenging DOMA Section 3, Pedersen v. OPM and Windsor v. United States. He wrote:[43]

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

He also announced the administration intended to enforce the law, as distinct from defending it in court, "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."[44]

In a separate letter to Speaker of the House John Boehner, Holder noted that Congress still had the ability to participate in these lawsuits in lieu of the Justice Department.[45]

On February 24, the Department of Justice notified the First Circuit Court of Appeals that it would "cease to defend" Gill and Massachusetts as well.[46] On July 1, 2011, the DOJ, with a filing in Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's strict scrutiny standard of review.[47] The DOJ made similar arguments in a filing in Gill on July 7.[48]

[edit] Congressional intervention

On March 4, 2011, Boehner announced plans to convene the Bipartisan Legal Advisory Group (BLAG) to consider whether the House of Representatives should defend DOMA Section 3 in place of the Department of Justice,[49][50] and on March 9 the committee voted 3-2 to do so.[51]

On April 18, 2011, House leaders announced they had selected former United States Solicitor General Paul Clement to represent the BLAG,[52] and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.[53] On April 25, 2011, King & Spalding, the law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined Bancroft PLLC, which took on the case.[54] The House's initial contract with Clement capped legal fees at $500,000,[55] but on September 30 a revised contract raised the cap to $1.5 million.[56] A spokesman for Boehner explained that the BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."[57]

[edit] Repeal attempts

Further information: Respect for Marriage Act

On September 15, 2009, three Democratic members of Congress, Jerrold Nadler of New York, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado, introduced legislation to repeal DOMA called the Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives.[58][59] Congressman Barney Frank and John Berry, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as Gill v. Office of Personnel Management filed by Gay & Lesbian Advocates & Defenders (GLAD).[60][61]

Following Holder's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, on March 16, 2011, Senator Dianne Feinstein introduced the Respect for Marriage Act in the Senate again and Nadler introduced it in the House.[62] The Senate Judiciary Committee voted 10-8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.[63]

[edit] Challenges in federal court

[edit] Early challenges

Early challenges to DOMA in federal courts failed. They included, for example, an attempt by a same-sex couple in the state of Washington, married in Canada, to file a joint bankruptcy petition,[64] an attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida,[65] and the case of two lesbian couples in Oklahoma, one of which couples sought a marriage license and the other to have the state recognize either their Canadian marriage or their Vermont civil union.[39]

[edit] Tribunals

In 2009, United States Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt declared DOMA unconstitutional in an employment dispute resolution tribunal, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson.[66] As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.

[edit] Golinski v. Office of Personnel Management

Golinski v. Office of Personnel Management, No. 10-00257 (N.D. Cal.), began in an employment dispute resolution tribunal and then became a challenge to DOMA in federal court. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her spouse. When the application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge Alex Kozinski ruled in 2009 that she was entitled to spousal health benefits,[67] but the Office of Personnel Management (OPM) announced that it would not comply with the ruling.

In January 2010, Golinski filed suit against the OPM in the U.S. District Court for the Northern District of California to enforce Kozinski's order.[68] On March 17, 2011, U.S. District Judge Jeffrey White dismissed the suit on procedural grounds but invited Golinski to amend her suit to argue the unconstitutionality of DOMA Section 3,[69] which they did on April 14.[70] On May 3, 2011, on behalf of the Bipartisan Legal Advisory Group (BLAG), former United States Solicitor General Paul Clement filed a motion to dismiss, raising arguments previously avoided by the Department of Justice that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children."[71] On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.[47]

A September 20, 2011, letter from New York Roman Catholic Archbishop Timothy Dolan, which included a three-page analysis by the U.S. Conference of Catholic Bishops, cited the brief as evidence that the DOJ "has shifted ... to actively attacking DOMA's constitutionality". Dolan predicted current federal actions would "precipitate a national conflict between church and state of enormous proportions and to the detriment of both institutions."[72]

On February 22, 2012, White ruled for Golinski finding DOMA "violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution." He wrote that Section 3 of DOMA could not pass the "heightened scrutiny" or the "rational basis" test. He wrote:[73]

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

He ordered that Golinski's wife be allowed to enroll for health care insurance as Golinski's spouse. Tara Borelli, the lead attorney for Lambda Legal, who represented Golinski, said "This ruling ... spells doom for DOMA".[73] On February 24, the BLAG filed a notice of appeal to the Ninth Circuit.[74]

[edit] Smelt v. County of Orange

In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, California, in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit,[75] and on October 10 the United States Supreme Court refused to consider the couple's appeal.[76] On March 9, 2009, the same couple, having legally married in California, filed another lawsuit, challenging the constitutionality of DOMA and California's Proposition 8.[77] District Judge David O. Carter dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."[78]

[edit] Gill and Massachusetts

On March 3, 2009, GLAD filed a federal court challenge, Gill v. Office of Personnel Management, based on the Equal Protection Clause and the federal government's heretofore consistent deference to each state's definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman.[79][80] On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston.[81]

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress "overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people."[82] Judge Tauro heard arguments in Massachusetts on May 26, 2010.

On July 8, 2010, Judge Tauro issued his rulings in both Gill and Massachusetts, granting summary judgment for the plaintiffs in both cases.[83] He found in Gill that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In Massachusetts he held that the same section of DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution.[84][85] Those decisions were automatically stayed for two weeks by federal court rules and were stayed further after the Department of Justice entered an appeal on October 12, 2010.[86]

On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in Gill and Massachusetts, asserting their belief that Section 3 of DOMA was unconstitutional.[87] Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996.[87]Seventy major employers have also filed an amicus brief supporting the plaintiffs.[88] The Court of Appeals has scheduled arguments in both cases for April 4, 2012.[89]

[edit] Pedersen and Windsor

Two more suits were filed on November 9, 2010, in courts that are part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases. GLAD filed Pedersen v. Office of Personnel Management in District Court in Connecticut making on behalf of same-sex couples in Connecticut, Vermont, and New Hampshire the same arguments it made in Gill. The American Civil Liberties Union and the law firm Paul, Weiss, Rifkind, Wharton & Garrison filed Windsor v. United States in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. [90][91] New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011.[92]

[edit] Other cases

Other pending DOMA cases include:[93]

  • Bishop v. United States, No. 04-848 (N.D. Okla.)
  • Dragovich, et al. v. Department of the Treasury, et al., No. 10-1564 (N.D. Cal.), in which California same-sex couples seek equal access to California's long-term care insurance program for public employees and their families.
  • Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.) Hara is one of the plaintiffs in Gill.
  • Torres-Barragan v. Holder, No. 10-55768 (9th Cir.)
  • Cozen O'Connor, P.C. v. Tobits and Farley, No. 11-00045-CDJ, Pennsylvania, in which two parties dispute who inherits the proceeds of a law firm's profit-sharing plan under ERISA and DOMA. The DOJ has filed a brief in the case arguing the unconstitutionality of DOMA.[94]

[edit] Military and veterans cases

On October 27, 2011, the Servicemembers Legal Defense Network (SLDN) brought suit in federal court on behalf of several military servicemembers and veterans in same-sex marriages. In a November 21 filing in the case of McLaughlin v. Panetta, they wrote: "Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion." The benefits at issue include medical and dental benefits, basic housing and transportation allowances, family separation benefits, visitation rights in military hospitals, and survivor benefit plans.[95] One of the plaintiffs in the case, lesbian Charlie Morgan who was undergoing chemotherapy, met with an assistant to Boehner on February 9, 2012, to ask him to consider not defending DOMA.[96] The case, McLaughlin v. Panetta, is on hold until April 28, 2012, at the request of both sides in anticipation of the outcome of two other First Circuit cases now on appeal, Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services, which were waiting for oral argument to be scheduled.[97] On February 17, the DOJ announced it could not defend the constitutionality of the statutes challenged in the case and passed the defense to the BLAG.[98]

Tracey Cooper-Harris, a California Army veteran, sued the Veterans Administration and the DOJ in federal court on February 1, 2012, asking for her wife to receive the benefits normally granted to spouses of disabled veterans.[99]

[edit] Bankruptcy court

In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.[100]

On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed the BLAG's objections to the joint filing. It said:[101]

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors' right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.

A spokesman for House Speaker Boehner said the Bipartisan Legal Advisory Group (BLAG) would not appeal the ruling,[102] On July 7, 2011, the DOJ announced that after consultation with the BLAG it would no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".[103]

[edit] Immigration cases

Bi-national same-sex couples are kept from legally living in the United States by DOMA's Section 3, which prevents one spouse from sponsoring the other for a green card.[104] Following some uncertainty after the Obama Administration determined Section 3 to be unconstitutional, the United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying such applications.[105] With respect to obtaining a visitor's visa, Bureau rules treat bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".[106]

Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists.[107] The U.S. refused to recognize their marriage and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign[108] that won the attention of Senator John F. Kerry, who first lobbied Attorney General Eric H. Holder Jr. without success.[109] He then gained the support of United States Department of Homeland Security Secretary Janet Napolitano who granted Oliveira humanitarian parole, enabling the couple to reunite in the U.S. in June 2010.[110] Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.[111]

On September 28, 2011, in Lui v. Holder, U.S. District Court Judge Stephen V. Wilson rejected a challenge against DOMA, citing Adams v. Howerton (1982). The plaintiffs in that case had unsuccessfully challenged the denial of immediate relative status to the same-sex spouse of an American citizen.[112][113] Early in 2012, two bi-national same-sex couples were granted "deferred action" status, suspending deportation proceedings against the non-U.S. citizen for a year.[114] A similar Texas couple had a deportation case dismissed in March 2012, leaving the non-citizen spouse unable to work legally in the United States and no longer subject to the threat of deportation.[115]

On January 5, 2012, a U.S. District Court in Illinois accepted the suit of a same-sex binational couple, Demos Revelis and Marcel Maas, married in Iowa in 2010, seeking to prevent the USCIS from applying Section 3 of DOMA to Revelis' application for a permanent residence visa for Maas and, in the court's words, "that their petition be reviewed and decided on the same basis as other married couples."[116]

[edit] Full faith and credit cases

In August 2007, the Tenth Circuit Court of Appeals in the case of Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere.[117] By contrast, Louisiana in Adar v. Smith successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple, who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples.[118]

On October 2, 2009, a Texas judge granted a divorce to two men married in Massachusetts. On August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court's ruling.[119] On January 7, 2011, the Third Court of Appeals in Austin allowed a divorce granted by a lower court to a lesbian couple married in Massachusetts to stand.[120]

[edit] DOMA and state legislation

A majority of the states, including those that have some benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman either by statute law or an amendment to their state constitution.[121] Most do not recognize same-sex unions from other jurisdictions, including other jurisdictions of the United States. States that permit same-sex marriages recognize same-sex marriages from other jurisdictions. Connecticut,[122] Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia allow marriages between persons of the same sex. Washington state is scheduled to permit them beginning June 7, 2012, unless sufficient signatures are collected by June 6 to subject the state's same-sex marriage law to a referendum in November.[123] Same-sex marriages become legal in Maryland on January 1, 2013, unless blocked by a referendum.[124]

California, which sanctioned same-sex marriages for several months in 2008 and has a ban (Proposition 8) on same-sex marriage that is the subject of litigation, recognizes same-sex marriages from other jurisdictions as equivalent to marriages in all but name.[125] New Mexico and Maryland recognize same-sex marriages from other jurisdictions. Other states that recognize same-sex marriages as marriage-like contracts under the name of civil union or domestic partnership include Delaware, Hawaii, Illinois,[126] Nevada, New Jersey, Oregon, Rhode Island and Washington.

[edit] See also

[edit] References

  1. ^ New York Times: Webster Schott, "Civil Rights and the Homosexual: A 4-Million Minority Asks for Equal Rights," November 12, 1967, accessed February 7, 2012
  2. ^ New York Times: "Homosexual Wins Fight to Take Bar Examination in Minnesota," January 7, 1973, accessed February 6, 2012.
  3. ^ a b Metro Weekly: Chris Geidner, "Domestic Disturbance," May 4, 2011, accessed February 10, 2012. mentions two other 1970s cases in Oklahoma and Washington.
  4. ^ New York Times: Lee Barton [pseudonym, "Why Do Homosexual Playwrights Hide their Homosexuality?," January 23, 1973], accessed February 7, 2012. For a review of the play see: New York Times: Clive Barnes, "'Nightride'–No Apologies and No Regrets," December 10, 1971, accessed February 7, 2012
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[edit] Bibliography

  • Feigen, Brenda. "Same-Sex Marriage: An Issue of Constitutional rights not Moral Opinions." 2004. 27 Harv. Women's L. J. 345.
  • "Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage." 2004. 117 Harv. L. Rev. 2684.
  • Manning, Jason (April 30, 2004). "Backgrounder: The Defense of Marriage Act". The Online News Hour. The News Hour with Jim Lehrer. http://www.pbs.org/newshour/bb/law/gay_marriage/act.html. Retrieved January 13, 2007. 
  • "Same Sex Marriage Passage" CQ Weekly. Congressional Quarterly. May 2, 2005.
  • United States. 104th Congress. Defense of Marriage Act. House of Representatives Committee Report. 1996.
  • Wardle, Lynn D. "A Critical Analysis of Constitutional Claims for Same Sex Marriage." 1996. 1996 B.Y.U.L. Rev. 1.

[edit] External links

Wikisource has original text related to this article:
Same-sex marriage legalized:
Same-sex marriage recognized,
but not performed:
Civil union or domestic partnership legal:
Same-sex marriage prohibited by statute:
Same-sex marriage prohibited
by constitutional amendment:
All types of same-sex unions prohibited
by constitutional amendment:
Recognition of same-sex unions undefined
by statute or constitutional amendment:

Notes:
*All out-of-state same-sex marriages are given the benefits of marriage under California law, although only those performed before November 5, 2008, are granted the designation "marriage".
# California's ban on same-sex marriage remains in limbo following a federal case finding the ban unconstitutional, which is currently stayed pending appeal.

†The Maryland Legislature passed a bill to allow same-sex couples to marry, and the Governor signed it into law. It will go into effect January 1, 2013 pending a referendum in November.
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