Jun. 26th, 2013

The Defense of Marriage Act (PL 104-199) (DOMA, henceforth) had two sections of effect (section 1 was only the instructions on citing it): Section 2 allowed states (and territories, possessions, and Indian tribes) to not recognize same-sex marriages (or contingent rights or claims) contracted in other states (or territories, possessions, or Indian tribes) (where such contracting is legal); section 3 denied Federal recognition of those marriages.

With today’s decision by the Supreme Court in United States v. Windsor (Windsor, henceforth), holding that Section 3 of DOMA (and therefore 28 USC 115 s1738C as modified thereby) is unconstitutional, the way has been cleared for same-sex married couples to claim the same Federal rights and benefits that opposite-sex married couples routinely enjoy.

A further effect of this appears to be that even if a same-sex couple married in (for example) New York (where same-sex marriage is legal) moves to a state that does not recognize the same-sex marriage, the access to federal rights and benefits continues unimpaired, because the marriage was legally contracted.

The decision does NOT require that states recognize same-sex marriages contracted in other states; Windsor did not bring Section 2 of DOMA to the attention of the Court.

In the following analysis of possible future attacks on Section 2 of DOMA, all emphasis of quoted sections of the Constitution are mine.

In past online discussion of DOMA, many people felt that it was unconstitutional, citing Article IV Section 1 (the “Full Faith and Credit clause”) of the Constitution. However, the full text of that section is as follows:

Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.


Note carefully the second sentence of the section, and most specifically the final clause thereof. Article IV Section 1 is no help in “breaking” DOMA; DOMA is a “general law” that “prescribe[s]” “the Effect thereof”.

I here quote Article IV Section 2 and Article XIV (Amending) Section 1:

Article IV
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article XIV (Amending)
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


These two sections may be of some help in defeating DOMA; it may be possible to argue that the rights and claims entailed in marriage in any given state may not be revoked or abridged if the married couple moves. With respect to Article XIV (Amending) Section 1, another possible argument against DOMA would be that married same-sex couples are denied equal protection under the law.

In attacking Section 2 of DOMA, it may be instructive to look at the Court's decision in Windsor. The Court held that Section 3 of DOMA was unconstitutional as a “deprivation of the equal liberty of persons ... protected by the Fifth Amendment”. I here quote Article V (Amending) for reference:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


The Court’s analysis touches on many specific issues, but the theme of the analysis is that the state (New York, in this case) chose to recognize and offer a certain dignity to same-sex couples, the same recognition and dignity offered to opposite-sex couples, but DOMA deliberately and specifically used the same state recognition to degrade that dignity and relegate those relationships to second-class status, unequal under Federal law. It further looks at the specific language in DOMA itself, in the arguments of the supporters, and in the language of the debates on DOMA in Congress, and concludes that the motivation for the passage of DOMA was “improper animus”.

Previous Supreme Court decisions have held that Article V (Amending) applies not only to the Federal government, but to the states severally as well. In addition, Section 1 of Article XIV (Amending) essentially repeats Article V (Amending)’s language with an explicit application to the states severally.

None of this, however, is a “slam-dunk” against Section 2 of DOMA. At best, it is sufficient grounds for a future Supreme Court ruling that a state may choose not to recognize same-sex marriages contracted in another state - but only if it also withholds such recognition from opposite-sex marriages from that same state. The approach then is to render the effect of Section 2 of DOMA null, in challenging the constitutionality of a state’s act to actually deny such recognition - in which event, the Court’s reasoning in Windsor comes into play, and a state’s act of availing itself of the provisions of Section 2 of DOMA is what may be found unconstitutional, not Section 2 of DOMA itself.

In other words: Section 2 of DOMA may be constitutional, either as it stands, or modified to not distinguish same-sex marriages from opposite-sex marriages, but it may not be constitutionally permissible for a state to act in accordance with it to not recognize marriages.

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