I wrote about Defense of Marriage Act back in May when discussing the topic of Same Sex Estate and Financial Planning. Well it turns out that a Federal District Court Judge has determined it the piece of legislation is Unconstitutional. Before I briefly describe the background and what happened, I want to mention that I believe that two consenting adults who love each other should be allowed to be recognized as a legal relationship (e.g. pro same sex marriage).
What Is the Defense of Marriage Act?
DOMA was enacted 1996 under President Clinton and it basically has two main parts:
- No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
- The federal government defines marriage as a legal union exclusively between one man and one woman.
These two main parts cause 2 problems for same sex couples. The first has to do with divorce law, and is put succinctly by Raymond Prather, Esq.,
…if a couple is married in Massachusetts and the moves to Rhode Island, which does not recognize same-sex marriage, then Rhode Island will not provide a forum for divorce…Most States allowing same-sex couples to divorce have residency requirements for jurisdiction over the divorce. The only way a couple in this situation can divorce is for one person to move to a state recognizing the marriage.
The second problem is easier to understand and has to do with federal benefits. By some estimates there are over a 1,100 federal benefits which same sex couples are barred from because their marriage is not legally recognized by the Federal government. The 1,100 number comes from directly from Judge Tauro’s decision in Gill.
District Court Judge Tauro Declares DOMA Unconstitutional
Judge Tauro (79 year old Nixon Appointed Judge) heard two different cases having to do with the Constitutionality of DOMA, and issued his Opinions on the campaign cases on July 8, 2010.
Gill v. Office of Personnel Management
The named Plaintiff was a Post Office personnel who applied for benefits for her ‘Wife.’ Gill v. Office of Personnel Management is about a
…a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts. Specifically, Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. (Full 39 Page Gill Decision).
The full Decision discusses topics I haven’t had to worry about in years (scrutiny issues), but the quote which is being used by the main stream media is,
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning.
While Gill challenges DOMA on 5th Amendment grounds, the next case challenges on 10th Amendment grounds.
Massachusetts v. United States Department of Health and Human Services
The 10th Amendment states,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So those powers not specifically granted to the Federal Government are reserved for the States. So Mass brought this case, Mass v. US Dept. of Health and Human Services , basically stating that the Federal Government wasn’t given the right to define marriage as such it is a State issue. You can read the Full 36 Page Mass Decision.
I doubt the fight is over anytime soon. I will have to assume that there will be appeals and other cases in other Federal District Courts leading to Appellate Courts having differing Opinions and eventually the Supreme Court will have to rule on it.