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DOMA and same-sex marriage
BY DAN KENNEDY
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It’s the forces of justice versus the axis of evil. Last week the Massachusetts Supreme Judicial Court ruled in the Goodridge case that same-sex couples have the right to marry. In 1996 Congress passed — and Bill Clinton signed — the odious Defense of Marriage Act, or DOMA, which restricts many of the benefits of marriage to heterosexual couples. Unless Massachusetts elected officials find a way to muck it up (and they’re trying hard), lesbian and gay couples will be able to marry legally here by next May. At that point, it becomes pertinent to ask how DOMA will affect same-sex marriages. What follows is a guide to DOMA in the post-Goodridge age. The Phoenix consulted with Harvard Law School professor Laurence Tribe and with Lara Schwartz, a lawyer who is senior staff counsel for the Human Rights Campaign, the country’s largest advocacy organization for lesbians and gay men. Q: What are the origins of DOMA? A: In 1996 Hawaii’s Supreme Court was poised to rule that the state’s ban on same-sex marriages was unconstitutional. In response, DOMA was introduced in Congress, and it was approved by wide margins as an election-year crowd-pleaser. Not that it mattered: back in Hawaii, voters approved an amendment to the state constitution restricting marriage to heterosexual couples.
Q: What effect will DOMA have? A: The law, which defines marriage as "only a legal union between one man and one woman as husband and wife," contains two prongs. The first refuses federal recognition to same-sex marriages, denying those involved in such marriages 1049 federal entitlements, such as Social Security survivor benefits, coverage under the Family and Medical Leave Act, and the right to file joint tax returns. The second gives states the right to opt out of the "full faith and credit" clause of the US Constitution, and thus empowers the states to refuse recognition to same-sex marriages performed in Massachusetts. Q: Wouldn’t the federal and state governments be able to impose these restrictions even without DOMA? A: Possibly, but it would be more difficult. At the federal level, the president — that would be George W. Bush, no friend of gay rights — could order the executive agencies to interpret federal laws governing marriage as pertaining only to traditional opposite-sex couples, which would have the effect of denying federal benefits. On the state level, there has always existed what is known as a "public-policy exception" to the full-faith-and-credit clause. A relevant example might be the marriage of a man to his niece. Some states allow it. Some states prohibit it, and if the uncle-niece couple were to move from the state where they were married to a state where such marriages are considered incest, their marriage might not be recognized. Q: What does DOMA say about a married gay or lesbian couple who reside in Massachusetts and are traveling in another state? A: The answer is uncertain. Travelers would rarely need to prove they are married, but there are some situations — such as if one partner were injured or killed in a traffic accident — where this might come into play. At the very least, DOMA makes same-sex couples less secure when traveling in other states, since they might be denied such basic rights as hospital visitation. Q: Thirty-seven states have their own DOMAs. What do they do that the federal DOMA does not? A: In simplest terms, a state DOMA implements the federal DOMA. That is, the federal DOMA allows a state to refuse recognition to same-sex marriages. The state DOMA is the mechanism by which that is done. Some state DOMAs are laws, some are state-constitutional amendments. The latter — including one proposed by Massachusetts governor Mitt Romney — would outlaw same-sex marriage even over the rule of a state supreme court. In addition, some states have what are called "super DOMAs" — laws that not only restrict marriage to heterosexual couples, but that also take away domestic-partnership benefits such as joint medical insurance and property inheritance. An example of a state with a super DOMA would be Texas, whose former governor is Bush, George W. (op. cit.). Q: Is the federal DOMA constitutional? A: Same-sex-marriage proponents say no, and they point to a number of flaws that would be ripe for challenge in the federal courts. For instance, the granting of federal benefits has always relied on the states’ interpretation of their own marriage laws, even when those laws conflict from state to state. An example of this would be common-law (unlicensed) marriages, which are recognized as legal in some states but not in others. Thus a couple living in one state might be eligible for federal benefits, and might be denied those same benefits if they moved to another state. DOMA, by contrast, overrides the states’ traditional role in defining marriage within their own borders. With respect to the full-faith-and-credit clause, let’s return to the marriage of an uncle and a niece. Either partner, obviously, could have gotten married to a non-relative. But a lesbian or gay man — unless willing to participate in a sham marriage — can only marry a partner of the same sex. Thus DOMA, unlike marriage laws governing blood relatives, discriminates against a broad class of citizens. An additional wrinkle is that, since DOMA rests on the public-policy exception, it is either unconstitutional or unnecessary. Q: So what happens now? A: Assuming same-sex couples are allowed to marry in Massachusetts, a constitutional challenge to DOMA would likely be launched in the federal courts in short order. Q: How will the US Supreme Court ultimately rule? A: It’s impossible to say. The court took a lot of heat from conservatives earlier this year when it threw out state anti-sodomy laws in its landmark Lawrence v. Texas decision. And as more than a few observers have noted over the years, the Supreme Court follows the election returns just like everybody else. "Courts," warns Tribe, "are immersed in the culture."
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