Sunday, June 3, 2012

The End of DOMA? - Part II

Two years ago we ran a post on the two companion cases in Massachusetts' federal district court that found Section 3 (we'll get into what that is in a minute) of the federal Defense of Marriage Act unconstitutional.  To quote from that post:

In Gill, the Court found that section 3 of DOMA is unconstitutional on Equal Protection Clause grounds.  The Equal Protection Clause is a clause in the 14th Amendment of the Constitution that basically says that States cannot make laws that treat one group of people differently from another group of people... 
In Commonwealth, the Court found that section 3 of DOMA is unconstitutional for a different reason. The Court held that section 3 of DOMA violates the 10th Amendment.  What is the 10th Amendment, you ask? ... the 10th Amendment is the Amendment that Conservatives love to cite to because it stands for State's Rights; it says that any power not specifically given to the Federal Government by the Constitution belongs to the States.
We noted at the end of that post that these 2 district court cases could very well make their way up to the federal 1st Circuit Court of Appeals.  As it turns out, they did.  The 1st Circuit -- a panel of judges comprised of 1 Clinton appointee, 1 Reagan appointee and 1 Bush Sr. appointee -- issued an historic ruling this past Thursday upholding the Massachusetts district court and ruling that Section 3 of DOMA is, as a matter of law, unconstitutional.

Now, getting back to the infamous Section 3.  Section 3 of DOMA is the section that declares that, for purposes of receiving any federal benefits, marriage shall be defined as between 1 man and 1 woman.  That means that same-sex couples in all 50 states -- even if that state recognizes same-sex marriage -- are prohibited from filing joint taxes, receiving spousal survivor benefits from the Social Security Administration, and any other federal benefit that married couples enjoy.  With this latest blow from the 1st Circuit, Section 3 is 0 for 2 in the federal courts.  Last stop: the Supreme Court.  [EDITOR'S NOTE: look for this case to make its way before the SCOTUS some time in 2013]. If the SCOTUS upholds the 1st Circuit, that would mean that the federal government could finally start giving federal benefits to same-sex couples.

But there's a catch.

The federal government does not decide who can or cannot get married.  That duty has, at all times, been left up to the states.  If a state issues you a marriage license, then the feds give you federal marriage benefits.  Conversely, if no state has issued you a marriage license, then, as far as the feds are concerned, their hands are tied (you can probably see where I'm going with this).

So let's assume for a moment that Section 3 is found unconstitutional by the Supreme Court.  The federal government is now free to start granting federal benefits to same-sex couples.  A same sex couple is married in New York and begin to avail themselves of all the federal benefits that come from being married (Medicare, joint taxes, etc.).  A few months later this couple moves to Kansas, a state that passed legislation in 1996 that specifically bans same-sex marriage.  What happens to that couple's federal benefits?  The answer brings us to the infamous Section 2 of DOMA and a little clause in the Constitution known as "Full Faith and Credit."

The Full Faith and Credit clause of Article IV in the Constitution basically says that the official public records and court decisions of one state will be honored in all other states.  OK, sounds fair enough right?  If you get married in one state and move to a new state then the new state must recognize your marriage license.  Ah, but hold on.  Not so fast.  Enter Section 2 of DOMA.  Section 2 of DOMA -- which is NOT at issue in these cases and thus was not ruled upon by either the 1st Circuit or the district court below -- specifically says that the Full Faith and Credit clause does not apply to same-sex marriages.  In other words, even IF the Supreme Court knocks Section 3 off the books, our New York couple from the hypo above would still lose the right to file joint federal taxes or any other federal benefit if they move to a state that bans same-sex marriage.

So while the 1st Circuit decision is a major milestone in the journey towards marriage equality, the larger fight has still yet to come.

1. What are your thoughts on DOMA? 
2. Should the issue of marriage be left up to the states?
3. Should a federal amendment be passed to the Constitution defining marriage?
4. Will these 2 cases be upheld or rejected by the Supreme Court?
5. Is there any problem (constitutional or otherwise) in treating same-sex couples differently from heterosexual couples?

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