Defense of Marriage Act is unconstitutional, federal appeals court rules

[garbon]

http://news.yahoo.com/blogs/lookout/defense-marriage-act-unconstitutional-federal-appeals-court-rules-175257996.html

On Thursday, a federal appeals court in Boston ruled that the government's ban on gay marriage, called the Defense of Marriage Act (DOMA), violates the Constitution and should be struck down.

If the Supreme Court hears the case and upholds this ruling, it means that the federal government would most likely have to recognize the marriages of gay couples who were wed and reside in the six states that allow same-sex unions.

The First Circuit Court found that the federal government does not have a right to interfere in states' definition of marriage, but stopped short of arguing that gay people have a constitutionally protected right to legal marriage. The First Circuit court is the first federal appeals court to strike down the law, and the case is likely to be taken up by the Supreme Court next year.

A section of DOMA, which was passed under President Bill Clinton, says that gay married couples are ineligible for federal benefits afforded to straight married people, such as tax breaks and Social Security survivor checks. DOMA encompasses about 1,000 federal laws tangentially related to marriage and affects 100,000 couples in the country, according to the decision. A group of gay couples in Massachusetts sued the government over the law, and the state of Massachusetts filed its own suit, saying DOMA makes its Medicaid program illegal because the state combines gay married couples' incomes in calculating eligibility. (Gay marriage is legal in Massachusetts.)

The Justice Department under President Barack Obama initially defended DOMA against this lawsuit, but last year announced that it found DOMA unconstitutional and would no longer back it. House Republicans then appointed outside attorneys to argue for the federal law.

The judges admitted that the decision rested on navigating difficult and thorny precedents. "Only the Supreme Court can finally decide this unique case," they wrote.

But in its decision, the First Circuit argued that the federal government has no interest in rejecting states' definition of marriage, and that the singling out of a minority group—gays and lesbians—was troubling.

"Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today," the First Circuit wrote. "One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

If the case makes it to the Supreme Court, all eyes will (as usual) be on Justice Anthony Kennedy, who moved to strike down laws banning anal sex in 2003 and a Colorado law that banned anti-discrimination rules that included gay people. So far, the Supreme Court has never held that sexual orientation can put people in a protected class, as it has with race and a few other things.

"I think this really does set up the issue for the Supreme Court to take this up next year," said Erwin Chemerinsky, a liberal constitutional law professor at UC Irvine.

The decision marks the latest court victory for gay rights proponents after the Ninth Circuit Court of Appeals struck down California's ban on gay marriage in February. After North Carolina voters inserted a ban on gay marriage and civil unions into their Constitution in May, Obama announced that he personally thinks gay people should allowed to be married. But he stopped short of saying that the federal government should guarantee that right, indicating that states should decide.

[MadImmortalMan]

I eagerly await the explanation of why the Commerce Clause allows this.

[stjaba]

I eagerly await the explanation of why the Commerce Clause allows this.

I have no doubt that Congress had the power to enact this particular provision. The statute at issue states, in relevant part:

"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."

The point of this part of the statute is to just provide a definition for the word "marriage" which appears in other statutes, regulations, etc. In other words, it it is just clarifying other statutes and regulations. For instance, that might be a regulation specifying that surviving spouses of married military personnel get certain benefits. That regulation might use the word "marriage" somewhere in there, without defining it. This statute clarifies what the word marriage means.

Under the "necessary and proper clause" in Article I of the Constitution, Congress has the power to enact laws that are "necessary and proper" in implementing its enumerated powers. A definitional provision, such as this one here, would be a classic example of a necessary and proper law, since statutes and regulations obviously need definitions.

Edit: Note that just because Congress has the power under Article I to enact the statute doesn't necessarily make it constitutional- obviously it can be challenged on  any other provision of the Constitution or any of the Amendments- as has been done here.

Also, while this litigation is focusing on the definitional portion of DOMA, I think the other provision in DOMA (stating that states do not have to recognize same-sex marriages from other states) is also on shaky grounds. I'm not sure if that provision has been litigated yet.

[merithyn]

I eagerly await the explanation of why the Commerce Clause allows this.

I have no doubt that Congress had the power to enact this particular provision. The statute at issue states, in relevant part:

"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."

The point of this part of the statute is to just provide a definition for the word "marriage" which appears in other statutes, regulations, etc. In other words, it it is just clarifying other statutes and regulations. For instance, that might be a regulation specifying that surviving spouses of married military personnel get certain benefits. That regulation might use the word "marriage" somewhere in there, without defining it. This statute clarifies what the word marriage means.

Under the "necessary and proper clause" Congress has the power to enact laws that are "necessary and proper" in implementing its enumerated powers. A definitional provision, such as this one here, would be a classic example of a necessary and proper law, since statutes and regulations obviously need definitions.

So the unanimous decision is stating that that definition is not legal?

[Sheilbh]

But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?

[Scipio]

But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?

Yes, you would think so.  But the full faith and credit clause of the 4th Article of the Constitution requires the Feds to determine how full faith and credit in the legally enforceable decisions of the states will be enforced against the several states.  And that is why the Congress can pass DOMA.

[merithyn]

But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?

The question is whether or not the federal government can offer benefits to those legally joined by those states that allow gay marriage or civil unions.

[stjaba]

So the unanimous decision is stating that that definition is not legal?

Yep.

[DontSayBanana]

Also, while this litigation is focusing on the definitional portion of DOMA, I think the other provision in DOMA (stating that states do not have to recognize same-sex marriages from other states) is also on shaky grounds. I'm not sure if that provision has been litigated yet.

"Shaky grounds" is giving it too much credit... as in, clear violation of "full faith and credit."

[Ideologue]

But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?

Yes, you would think so.  But the full faith and credit clause of the 4th Article of the Constitution requires the Feds to determine how full faith and credit in the legally enforceable decisions of the states will be enforced against the several states.  And that is why the Congress can pass DOMA.

Indeed.  Jaba and Camerus or possibly Captain Carrot are incorrect.

[stjaba]

Indeed.  Jaba and Camerus or possibly Captain Carrot are incorrect.

That's why I hedged my language and said "shaky grounds." 

[DontSayBanana]

Indeed.  Jaba and Camerus or possibly Captain Carrot are incorrect.

I'm gonna call BS.  Full faith and credit gives Congress authority to determine a methodology for communication, not carte blanche to override definitions for state matters.  Forms of proof, timelines for requests of proof, that kind of thing- that's what FF&C delegates to Congress.

[dps]

But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?

The problem is how to apply that principle in regards to things such as federal survivor's pensions.  Suppose a couple is legally married under the laws of state A.  Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met).  But suppose the couple had moved to state B, where there marriage is not recognized.  Would the survivor still be eligible for a federal pension?  How about if the survivor moved to state B after the death of the other partner?

To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all.  The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.

[grumbler]

The problem is how to apply that principle in regards to things such as federal survivor's pensions.  Suppose a couple is legally married under the laws of state A.  Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met).  But suppose the couple had moved to state B, where there marriage is not recognized.  Would the survivor still be eligible for a federal pension?  How about if the survivor moved to state B after the death of the other partner?

To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all.  The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.

This is the way I see it, as well.  FF&C is between states, not between the states and the Feds (though, as has been noted, the Feds sometimes get involved in processes by which the states can exercise FF&C, I believe).

An analogy would be Federal pensions for, say, a "black" woman marries a "white" man in, say, 1950 Minnesota, where the marriage is legal, and he gets killed the next year while serving in the Army.  She moves back to her mother's house in South Carolina, where the marriage isn't legal.  Is she entitled to his survivor's benefits?

FF&C would say that the above marriage would have had to be recognized in South Carolina (and my understanding is that SC would reluctantly have done so), but that would mean that FF&C also requires that states that don't allow same-sex marriages recognize same-sex marriages legally performed in other states, also.  I don't understand how this distinction can be squared with the Constitution.

The federal Obstruction of Marriages Act (or whatever it is called) seems even less defensible than state laws refusing to honor FF&C.  The Federal government does not seem to have the power to enact such a law, as far as I can see.  A legal marriage would seem to be legal, and so no such law would be necessary or proper.

[dps]

The problem is how to apply that principle in regards to things such as federal survivor's pensions.  Suppose a couple is legally married under the laws of state A.  Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met).  But suppose the couple had moved to state B, where there marriage is not recognized.  Would the survivor still be eligible for a federal pension?  How about if the survivor moved to state B after the death of the other partner?

To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all.  The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.

This is the way I see it, as well.  FF&C is between states, not between the states and the Feds (though, as has been noted, the Feds sometimes get involved in processes by which the states can exercise FF&C, I believe).

An analogy would be Federal pensions for, say, a "black" woman marries a "white" man in, say, 1950 Minnesota, where the marriage is legal, and he gets killed the next year while serving in the Army.  She moves back to her mother's house in South Carolina, where the marriage isn't legal.  Is she entitled to his survivor's benefits?

FF&C would say that the above marriage would have had to be recognized in South Carolina (and my understanding is that SC would reluctantly have done so), but that would mean that FF&C also requires that states that don't allow same-sex marriages recognize same-sex marriages legally performed in other states, also.  I don't understand how this distinction can be squared with the Constitution.

The thing is, though, that while it would seem that FF&C would require a marriage performed legally in one state to be recognized by all other states, in practice that hasn't been the case, at least to my understanding.  For example, until the Supreme Court declared all state laws banning interracial marriage unconstitutional, states where they were illegal didn't recognize such marriages even if performed in states where they were legal, and the federal government never forced them to do so, as best as I can tell.  I have no idea how the feds handled survivors' benefits from such marriages.