More on DOMA
Earlier this month, a federal district court judge in Massachusetts issued two opinions, in which for different, but related reasons he invalidated a key provision of the Defense of Marriage Act of 1996 ("DOMA") as applied to the plaintiffs before the court.
Section 3 of DOMA provides that marriage is defined as the union between a man and a woman for all federal-law purposes — of which there are 1,138. By defining marriage at all, rather than deferring to each state’s definition of marriage, Congress certainly departed from its past tradition. But was the departure constitutionally invalid? That is the question that has been explored (and answered "Yes") in both Gill v. Office of Personnel Management and Commonwealth v. U.S. Department of Health and Human Services.
In Part One of this two-part series, I will describe DOMA and explain the reasoning that led Judge Joseph L. Tauro, in Gill , to invalidate section 3 as applied to the plaintiffs in that case.
In Part Two — appearing on FindLaw tomorrow, Tuesday, July 20 — I will discuss the ruling in Commonwealth and consider the marriage-regulation history that is so central to the court’s reasoning in both cases.
Where the Story Begins: The Defense of Marriage Act of 1996 (DOMA)
In a way, the story here begins fourteen years ago. In 1996, it seemed very likely that Hawaii was about to become the first state in the union to legalize same-sex marriage. In fact, Massachusetts took those honors in 2004, followed several years later by four additional states and the District of Columbia. But, for a time, all eyes were on Hawaii because its highest court had ruled, in Baehr v. Lewin, that a ban on same-sex marriage was a form of sex discrimination that warranted the highest form of judicial scrutiny (and, presumably, would be invalidated once that scrutiny was applied).
Out of fear of the effects Hawaii’s anticipated ruling might have on other states and on the federal government, Congress passed the Defense of Marriage Act of 1996 (DOMA) in haste, just a few weeks before the 1996 presidential election. DOMA was pushed through quickly in anticipation of Hawaii’s legalization of same-sex marriage, and the legislative history of DOMA reveals an intense focus on confining such marriages to the state of Hawaii alone.
DOMA’s scheme for confining same-sex marriage to Hawaii (or to any other state that might eventually legalize it) was twofold. Section Two of DOMA purports to give states the right to refuse recognition to same-sex marriages that have been celebrated in other states — while, at the same time, leaving open the possibility that each state might permit same-sex marriages within its own borders. Second, and more pertinent here, Section Three of DOMA provides that, for any federal-law purpose, "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 wife."
The Claim in Gill v. Office of Personnel Management : The Intent of the DOMA Drafters
The plaintiffs in Gill — one of the Massachusetts federal district court cases before Judge Tauro — are same-sex couples who legally married in Massachusetts, and yet were each denied some marriage-based entitlement by the federal government. Among the entitlements denied were spousal health benefits for federal employees, retirement and survivor benefits under the Social Security system, and joint filing status with the IRS. In each instance, the married couple presented satisfactory proof of marriage to the federal agency in question — and in each instance, they were told, nevertheless, that Section Three of DOMA prevents the federal government from giving effect to the marriage.
The various agencies were no doubt applying Section Three of DOMA exactly as Congress wrote and intended it. Under DOMA, these same-sex marriages were to be ignored under federal law, even though …
