Initially introduced in May 1996, DOMA passed both houses of
Congress by large, veto-proof majorities and was signed into law by
President Bill Clinton in September 1996. By defining "spouse" and its related terms to signify a
heterosexual couple in a recognized marriage, Section 3 codified non-recognition of
same-sex marriages for all federal purposes, including insurance benefits for government employees,
social security survivors' benefits, immigration, bankruptcy, and the filing of joint
tax returns, as well as excluding same-sex spouses from the scope of laws protecting families of federal officers (18 U. S. C. §115), laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.
[1]:23–24
On July 18, the
Bipartisan Legal Advisory Group (BLAG), which had mounted a defense of Section 3 when the administration declined to, acknowledged that in
Windsor "[t]he Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and said "it no longer will defend that statute."
[2]
The issue of legal recognition of same-sex marriage attracted mainstream attention infrequently until the 1980s. A sympathetic reporter heard several gay men raise the issue in 1967 and described it as "high among the deviate's hopes".
[3] In one early incident, gay activist
Jack Bakerbrought suit against the state of Minnesota in 1970 after being denied a marriage license to marry another man, and in
Baker v. Nelson the
Minnesota Supreme Court ruled that limiting marriage to opposite-sex couples did not violate the United States Constitution. Baker later changed his legal name to Pat Lynn McConnell and married his male partner in 1971, although the marriage was not legally recognized.
[4][5] A 1972 off-Broadway play,
Nightride, depicted, in the author's words, "a black–white homosexual marriage".
[6][n 1] In 1979,
IntegrityUSA, an organization of gay Episcopalians, raised the issue as the Episcopal Church in the U.S. considered a ban on the ordination of homosexuals as priests.
[7][n 2]
The
New York Times said the question was "all but dormant" until the late 1980s when, according to gay activists, "the AIDS epidemic... brought questions of inheritance and death benefits to many people's minds."
[8] In May 1989, Denmark established registered partnerships that granted same-sex couples many of the rights associated with marriage.
[8] In the same year, New York's highest court ruled that two homosexual men qualified as a family for the purposes of New York City's rent-control regulations.
[8] Within the movement for gay and lesbian rights, a debate between advocates of sexual liberation and of social integration was taking shape, with
Andrew Sullivan publishing an essay "Here Comes the Groom" in
The New Republic in August 1989 arguing for same-sex marriage: "A need to rebel has quietly ceded to a desire to belong", he wrote.
[5] In September 1989, the
State Bar Association of California urged recognition of marriages between homosexuals even before gay rights advocates adopted the issue.
[8]
Gary Bauer, head of the
socially conservative Family Research Council, predicted the issue would be "a major battleground in the 1990s".
[8] In 1991, Georgia Attorney General
Michael J. Bowers withdrew a job offer made to a lesbian who planned to marry another woman in a Jewish wedding ceremony.
[9] In 1993, a committee of the
Evangelical Lutheran Church in America released a report asking Lutherans to consider blessing gay marriage and stating that lifelong abstinence was harmful to gay and lesbian couples. The Conference of Bishops responded, "There is basis neither in Scripture nor tradition for the establishment of an official ceremony by this church for the blessing of a homosexual relationship."
[10] In a critique of radicalism in the gay liberation movement,
Bruce Bawer's
A Place at the Table (1993) advocated the legalization of same-sex marriage.
[11]
The main provisions of the act were as follows:
[13]
- Section 1. Short title
- This Act may be cited as the "Defense of Marriage Act".
- Section 2. Powers reserved to the states
- No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
- Section 3. Definition of marriage (ruled unconstitutional by the Supreme Court)
- 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.
Georgia Representative
Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it in the
House of Representatives on May 7, 1996. Senator
Don Nickles, Republican of Oklahoma, introduced it in the
Senate.
[14] The
House Judiciary Committee stated that the Act was intended by Congress to "reflect and honor a collective moral judgment and to express moral disapproval of homosexuality."
[15] The Act's congressional sponsors stated, "[T]he bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex."
[16]
Nickles said, "If some state wishes to recognize same-sex marriage, they can do so". He said the bill would ensure that "the 49 other states don't have to and the Federal Government does not have to."
[14] In opposition to the bill, Colorado Rep.
Patricia Schroeder said, "You can't amend the Constitution with a statute. Everybody knows that. This is just stirring the political waters and seeing what hate you can unleash."
[14] Barr countered that the
Full Faith and Credit Clause of the Constitution grants Congress power to determine "the effect" of the obligation of each state to grant "full faith and credit" to other states' acts.
[14]
The 1996 Republican Party platform endorsed DOMA, referencing only Section 2 of the act: "We reject the distortion of [anti-discrimination] laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions."
[17]The Democratic Party platform that year did not mention DOMA or marriage.
[18] In a June 1996 interview in the gay and lesbian magazine
The Advocate, Clinton said, "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered."
[19] In the same year, in response to a citizen's letter, he also wrote that "raising this issue is divisive and unnecessary."
[20]
Some Democrats viewed the legislation as politically motivated rather than a response to societal developments. Sen.
Ted Kennedy of Massachusetts called DOMA the "Endangered Republican Candidates Act"
[21] and said it was "a mean-spirited form of legislative gay-bashing designed to inflame the public four months before the November election."
[22] Gay and lesbian rights organizations found there was little time to lobby in opposition, because the Clinton administration preferred to have DOMA become law as quickly as possible and not become an issue in the fall presidential campaign.
[21] Kennedy led an effort to pass hiring and employment protection for gays and lesbians, the
Employment Non-Discrimination Act (ENDA), in concert with DOMA, but the effort failed in the Senate by one vote.
[22]
The bill moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the
Republican-controlled Congress, passing by a vote of 85–14 in the Senate
[23] and a vote of 342–67 in the House.
[24] Democratic Senators voted for the bill 32 to 14 (with Pryor of Arkansas absent), and Democratic Representatives voted for it 118 to 65, with 15 not participating. All Republicans in both houses voted for the bill with the sole exception of the one openly gay Republican congressman, Rep.
Steve Gunderson of Wisconsin.
[25] The sole independent in the House,
Bernie Sanders of Vermont, voted against the bill. On the day it passed the House, a White House spokesman called the legislation "gay baiting".
[26]
Though he personally did not support gay marriage, Clinton also was against passing the Defense of Marriage Act, feeling it was an insult to many of his gay friends.
[27] However, after Congress had passed the bill with enough votes to override a presidential veto,
[27] Clinton decided to sign the bill into law in order to avoid the type of political damage he encountered earlier in his presidency when he underestimated the public's opposition to his attempt to allow gays and lesbians to serve openly in the US military.
[27] Clinton, who was traveling when Congress acted, signed it into law promptly upon returning to Washington, D.C., on September 21, 1996.
[21] The White House released a statement in which Clinton said "that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation".
[21] In 2013,
Mike McCurry, the White House press secretary at the time, recalled that "His (Clinton's) posture was quite frankly driven by the political realities of an election year in 1996."
[27] In the weeks before the election, the Clinton-Gore campaign ran ads highlighting Clinton's support for the Act, arguing that it was proof that Clinton was in lock-step with the "values" of opponents of gay marriage.
[28]
Clinton did not mention the issue in his
2004 autobiography.
[29] Over time, Clinton's personal views on same-sex marriage shifted. In July 2009, he said, "I personally support people doing what they want to do. I think it's wrong for someone to stop someone else from doing that [gay marriage]."
[30] Clinton added that he personally supported same-sex marriage but did not believe it is a "federal question", stating, "I think all these states that do it should do it."
[31] On March 7, 2013, in an op-ed he wrote for the Washington Post, Clinton urged the Supreme Court, which would shortly hear arguments on
United States v. Windsor, to overturn DOMA.
[32][33]
The
General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor".
[34] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.
[35] With respect to Social Security, housing, and food stamps, the GAO found that "recognition of the marital relationship is integral to the design of the program[s]." The other major categories the GAO identified were veterans' benefits, including pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military. Among many specifics, it noted the rights of the widow or widower of the creator of a copyrighted work and certain financial disclosure requirements that include the spouses of members of Congress and certain officers of the federal government. Education loan programs and agriculture price support and loan programs also implicate spouses. Financial aid to "family farms" is restricted to those in which "a majority interest is held by individuals related by marriage or blood."
[34]
Because the federal
Employee Retirement Income Security Act (ERISA) controls most employee benefits provided by private employers, DOMA removed some tax breaks for employers and employees in the private sector when it comes to health care, pension, and disability benefits to same-sex spouses on an equal footing with opposite-sex spouses. ERISA does not affect employees of state and local government or churches, nor does it extend to such benefits as employee leave and vacation.
[36]
Under DOMA, persons in same-sex marriages were not considered married for immigration purposes. U.S. citizens and permanent residents in same-sex marriages could not petition for their spouses, nor could they be accompanied by their spouses into the U.S. on the basis of a family or employment-based visa. A non-citizen in such a marriage could not use it as the basis for obtaining a waiver or relief from removal from the U.S.
[37]
Following the end of the U.S. military's ban on service by open gays and lesbians, "
Don't ask, don't tell," in September 2011, Admiral
Mike Mullen,
Chairman of the Joint Chiefs of Staff, noted that DOMA limited the military's ability to extend the same benefits to military personnel in same-sex marriages as their peers in opposite-sex marriages received, notably health benefits.
[38] Same-sex spouses of military personnel were denied the same access to military bases, legal counseling, and housing allowances provided to different-sex spouses.
[39]
The 2000 Republican Party platform endorsed DOMA in general terms and indicated concern about
judicial activism: "We support the traditional definition of 'marriage' as the legal union of one man and one woman, and we believe that federal judges and bureaucrats should not force states to recognize other living arrangements as marriages.
[40] The Democratic Party platform that year did not mention DOMA or marriage in this context.
[41]
In 2004, President
George W. Bush endorsed a proposed constitutional amendment to restrict marriage to opposite-sex couples because he thought DOMA vulnerable: "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity."
[42] In January 2005, he said he would not lobby on its behalf, since too many U.S. senators thought DOMA would survive a constitutional challenge.
[43]
President
Barack Obama's 2008
political platform endorsed the repeal of DOMA.
[44][45] On June 12, 2009, the
Justice Department issued a brief defending the constitutionality of DOMA in the case of
Smelt v. United States, continuing its longstanding practice of defending all federal laws challenged in court.
[46] On June 15, 2009,
Human Rights Campaign President
Joe Solmonese wrote an open letter to Obama that asked for actions to balance the DOJ's courtroom position: "We call on you to put your principles into action and send legislation repealing DOMA to Congress."
[47] A representative of
Lambda Legal, an LGBT impact litigation and advocacy organization, noted that the Obama administration's legal arguments omitted the Bush administration's assertion that households headed by opposite-sex spouses were better at raising children than those headed by same-sex spouses.
[46]
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.
He also announced the administration intended to enforce the law, as distinct from defending it in court, "unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."
[48]
On February 24, the Department of Justice notified the
First Circuit Court of Appeals that it would "cease to defend"
Gill and
Massachusetts as well.
[50] On July 1, 2011, the DOJ, with a filing in
Golinski, intervened for the first time on behalf of a plaintiff seeking to have DOMA Section 3 ruled unconstitutional, arguing that laws that use sexual orientation as a classification need to pass the court's
intermediate scrutiny standard of review.
[51] The DOJ made similar arguments in a filing in
Gill on July 7.
[52]
In June 2012, filing an
amicus brief in
Golinski, two former Republican Attorneys General,
Edwin Meese and
John Ashcroft, called the DOJ's decision not to defend DOMA Section 3 "an unprecedented and ill-advised departure from over two centuries of Executive Branch practice" and "an extreme and unprecedented deviation from the historical norm".
[53]
On March 4, 2011, Boehner announced plans to convene the
Bipartisan Legal Advisory Group (BLAG) to consider whether the House of Representatives should defend DOMA Section 3 in place of the Department of Justice,
[54][55] and on March 9 the committee voted 3–2 to do so.
[56]
On April 18, 2011, House leaders announced they had selected former United States Solicitor General
Paul Clement to represent BLAG,
[57] and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.
[58][59] On April 25, 2011,
King & Spalding, the
law firm through which Clement was handling the case, announced it was dropping the case. On the same day, Clement resigned from King & Spalding in protest and joined
Bancroft PLLC, which took on the case.
[60] The House's initial contract with Clement capped legal fees at $500,000,
[61] but on September 30 a revised contract raised the cap to $1.5 million.
[62] A spokesman for Boehner explained that BLAG would not appeal in all cases, citing bankruptcy cases that are "unlikely to provide the path to the Supreme Court....[E]ffectively defending [DOMA] does not require the House to intervene in every case, especially when doing so would be prohibitively expensive."
[63]
On September 15, 2009, three Democratic members of Congress,
Jerrold Nadler of New York,
Tammy Baldwin of
Wisconsin, and
Jared Polis of
Colorado, introduced legislation to repeal DOMA called the
Respect for Marriage Act. The bill had 91 original co-sponsors in the House of Representatives
[64][65] and was supported by Clinton, Barr, and several legislators who voted for DOMA.
[66] Congressman
Barney Frank and
John Berry, head of the Office of Personnel Management, did not support that effort, stating that "the backbone is not there" in Congress. Frank and Berry suggested DOMA could be overturned more quickly through lawsuits such as
Gill v. Office of Personnel Management filed by
Gay & Lesbian Advocates & Defenders (GLAD).
[67][68]
Following Holder's announcement that the Obama Administration would no longer defend DOMA Section 3 in court, on March 16, 2011, Senator
Dianne Feinstein introduced the Respect for Marriage Act in the Senate again
[69] and Nadler introduced it in the House.
[70] The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor, but observers believed it would not gain the 60 votes needed to end debate and bring it to a vote.
[71]
Numerous plaintiffs have challenged DOMA. Cases from the middle of the first decade of the 21st century upheld the law:
- In re Kandu, a same-sex couple in the state of Washington, who had married in Canada, attempted to file a joint bankruptcy petition, but were not allowed to do so.[72][73]
- Wilson v. Ake, an unsuccessful attempt by a Florida same-sex couple, married in Massachusetts, to have their marriage license accepted in Florida.[n 3]
More recent cases have focused on Section 3's definition of marriage. The courts, using different standards, have all found Section 3 unconstitutional. Requests for the Supreme Court to hear appeals were filed in five cases, listed below (with Supreme Court docket numbers):
Golinski v. Office of Personnel Management[edit source | editbeta]
Golinski v. Office of Personnel Management is a challenge to Section 3 of DOMA in federal court based on a judicial employee's attempt to receive spousal health benefits for her wife. In 2008, Karen Golinski, a 19-year employee of the Ninth Circuit Court of Appeals, applied for health benefits for her wife. When the application was denied, she filed a complaint under the Ninth Circuit's Employment Dispute Resolution Plan. Chief Judge
Alex Kozinski, in his administrative capacity, ruled in 2009 that she was entitled to spousal health benefits,
[75] but the
Office of Personnel Management (OPM) announced that it would not comply with the ruling.
On March 17, 2011, U.S. District Judge
Jeffrey White dismissed the suit on procedural grounds but invited Golinski to amend her suit to argue the unconstitutionality of DOMA Section 3,
[76] which she did on April 14.
[77] Following the Attorney General's decision to no longer defend DOMA,
[48] the
Bipartisan Legal Advisory Group (BLAG), an arm of the House of Representatives, took up the defense. Former
United States Solicitor General Paul Clement filed, on BLAG's behalf, a motion to dismiss raising arguments previously avoided by the Department of Justice: that DOMA's definition of marriage is valid "because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children."
[78][79] On July 1, 2011, the DOJ filed a brief in support of Golinski's suit, in which it detailed for the first time its case for heightened scrutiny based on "a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities" and its arguments that DOMA Section 3 fails to meet that standard.
[51][80]
On February 22, 2012, White ruled for Golinski, finding DOMA "violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution." He wrote that Section 3 of DOMA could not pass the "
heightened scrutiny" or the "
rational basis" test. He wrote,
[81]
The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.
While the case was on appeal to the Ninth Circuit, on July 3, 2012, the DOJ asked the Supreme Court to review the case before the Ninth Circuit decides it so it can be heard together with two other cases in which DOMA Section 3 was held unconstitutional,
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human Services.
[82] The Supreme Court chose to hear
Windsor instead of these cases, and following the Supreme Court decision in
Windsor the Ninth Circuit dismissed the appeal in
Golinski with the consent of all parties on July 23.
[83]
On November 3, 2011, 133 House Democrats filed an amicus brief in support of the plaintiffs in
Gill and
Massachusetts, asserting their belief that Section 3 of DOMA was unconstitutional.
[94] Included among the members of Congress signing the brief were 14 members who had voted for the bill in 1996.
[94] Seventy major employers also filed an amicus brief supporting the plaintiffs.
[95] A three-judge panel heard arguments in the case on April 4, 2012, during which the DOJ for the first time took the position that it could not defend Section 3 of DOMA under any level of scrutiny.
[96]On May 31, 2012, the panel unanimously affirmed Tauro's ruling, finding Section 3 of DOMA unconstitutional.
[97][98] On June 29, BLAG filed a petition for
certiorari with the Supreme Court.
[99] The DOJ did so on July 3, while asking the Supreme Court to review
Golinski as well.
[82] The Commonwealth of Massachusetts filed a response to both petitions adding the Spending Clause and Tenth Amendment issues as questions presented.
[n 4] The Supreme Court denied these petitions on June 27, 2013, following its decision in
Windsor.
On June 6, 2012, Judge
Barbara Jones ruled that based on rational basis review, Section 3 of DOMA is unconstitutional and ordered the requested tax refund be paid to Windsor. The plaintiff commented, "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."
[103] Windsor's attorneys filed a petition of certiorari with the Supreme Court on July 16, asking for the case to be considered without waiting for the Second Circuit's review.
[104] On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional.
[105][106] According to an ACLU press release, this ruling was "the first federal appeals court decision to decide that government discrimination against gay people
gets a more exacting level of judicial review"
[107] In an opinion authored by Chief Judge Dennis Jacobs, the Second Circuit Court of Appeals stated:
[108]
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition, but law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.
On December 7, the Supreme Court agreed to hear the case. Oral arguments were heard on March 27, 2013.
[109] In a 5–4 decision on June 26, the Court ruled Section 3 of DOMA to be unconstitutional, declaring it "a deprivation of the liberty of the person protected by the Fifth Amendment."
[1]:25
Pedersen v. Office of Personnel Management[edit source | editbeta]
On July 31, 2012, Judge
Vanessa Bryant ruled that "having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."
[110] She held that "laws that classify people based on sexual orientation should be subject to heightened scrutiny by courts" but determined Section 3 of DOMA "fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
[111][112] The case is currently on appeal to the Second Circuit, and on August 21, 2012, Pedersen asked the Supreme Court to review the case before the Second Circuit decides it so it can be heard together with
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human Services.
[113] The Supreme Court denied these petitions on June 27, 2013, following its decision in
Windsor.
Other cases challenging DOMA include:
[114]
- Smelt v. Orange County and Smelt v. United States, In February 2004, Arthur Smelt and Christopher Hammer sued Orange County, California, in federal court for refusing to issue them a marriage license. The district court ruled that the couple did not have standing to challenge Section 2 of DOMA and rejected their challenge to the constitutionality of Section 3. On May 5, 2006, the United States Court of Appeals for the Ninth Circuit dismissed the suit,[115] and on October 10 the United States Supreme Court refused to consider the couple's appeal.[116] On March 9, 2009, the same couple, having legally married in California, filed Smelt v. United States, challenging the constitutionality of DOMA and California's Proposition 8.[117] District Judge David O. Carter dismissed the case on August 24, because the couple had not applied for and been denied any federal benefit and therefore lacked "an injury in fact."[118]
- Bishop v. United States (formerly Bishop v. Oklahoma), two lesbian couples in Oklahoma, one of which couples sought a marriage license and the other to have the state recognize either their Canadian marriage or their Vermont civil union.[119][120] The court stayed consideration of the case pending the outcome of Windsor. On July 16, following the decision in Windsor, the plaintiffs sought permission to file a supplemental brief.[121] The case continues as a challenge to Oklahoma's 2004 constitutional amendment banning any recognition of same-sex marriage.[122]
- Dragovich v. Department of the Treasury, No. 10-1564 (N.D. Cal.), a class action in which California same-sex couples seek equal access to California's long-term care insurance program for public employees and their families. U.S. District Court Judge Claudia Wilken on May 24, 2012, found Section 3 of DOMA and certain IRS regulations violated the plaintiffs' equal protection rights.[123] Briefs in an appeal to the Ninth Circuit are due October 29.[124]
- Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.) Hara is one of the plaintiffs in Gill.
- Torres-Barragan v. Holder, No. 10-55768 (9th Cir.) An immigration-related DOMA challenge in which the district court rejected the constitutional challenges. No longer being appealed.[125]
- Cozen O'Connor v. Tobits, No. 11-00045-CDJ, Pennsylvania, in which two parties dispute who inherits the proceeds of a law firm's profit-sharing plan under ERISA and DOMA. The DOJ has filed a brief in the case arguing the unconstitutionality of DOMA.[126] Disregarding DOMA following the decision in Windsor, Judge C. Darnell Jones II ruled that the widow qualified as the deceased's spouse since Illinois, their state of domicile, recognized them as spouses in a civil union as defined by Illinois.[127]
- On April 5, 2012, Chief Judge James Ware of the U.S. District Court for the Northern District of California ordered the federal court clerk to reimburse Christopher Nathan, a court employee, for the costs of health insurance coverage for his same-sex spouse comparable to that denied him by Section 3 of DOMA.[128] On November 21, 2012, the Ninth Circuit Judicial Conference affirmed Ware's decision and ordered the court to determine the amount due Nathan and pay him within 10 days.[129]
On October 13, 2011, Carmen Cardona, a U.S. Navy veteran, filed a lawsuit in the
United States Court of Appeals for Veterans Claims seeking disability benefits for her wife that the Veterans Administration and the Board of Veterans Appeals had denied.
[130] Cardona is represented by the Yale Law School Legal Services Clinic.
[131] At the request of BLAG, which is defending the government's action, and over Cardona's objections, the court postponed oral argument in
Cardona v. Shinseki pending the Supreme Court's disposition of writs of certiorari in other DOMA cases.
[132]
On October 27, 2011, the
Servicemembers Legal Defense Network (SLDN) brought suit in federal court on behalf of several military servicemembers and veterans in same-sex marriages. In a November 21 filing in the case of
McLaughlin v. Panetta, they wrote, "Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion." The benefits at issue include medical and dental benefits, basic housing and transportation allowances, family separation benefits, visitation rights in military hospitals, and survivor benefit plans.
[133] The case was assigned to Judge
Richard G. Stearns. One of the plaintiffs in the case, lesbian Charlie Morgan, who was undergoing chemotherapy, met with an assistant to Boehner on February 9, 2012, to ask him to consider not defending DOMA.
[134] The case is on hold at the request of both sides in anticipation of the outcome of two other First Circuit cases on appeal,
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human Services.
[135] On February 17, the DOJ announced it could not defend the constitutionality of the statutes challenged in the case.
[136] In May 2012, the parties filed briefs arguing whether BLAG has a right to intervene.
[137] On June 27, Stearns asked the parties to explain by July 18 why given the decision in
Windsor he should not find for the plaintiffs.
[138] On July 18, BLAG's response acknowledged that "[t]he Supreme Court recently resolved the issue of DOMA Section 3's constitutionality" and asked to be allowed to withdraw from the case. It took no position on the two statutes at issue in the case, which define a "spouse" as "a person of the opposite sex", except to say that "the question of whether [that definition] is constitutional remains open".
[139]
Tracey Cooper-Harris, an Army veteran from California, sued the
Veterans Administration and the DOJ in federal court on February 1, 2012, asking for her wife to receive the benefits normally granted to spouses of disabled veterans.
[140] BLAG sought a delay in
Cooper-Harris v. United Statespending the resolution of
Golinski, which the attorneys for Cooper-Harris, the
Southern Poverty Law Center, opposed. The court denied BLAG's motion on August 4.
[141] In February 2013, Judge
Consuelo Marshall rejected the DOJ's argument that the case could only be heard by the
Board of Veterans' Appeals and allowed the case to proceed.
[142] BLAG asked to withdraw from the lawsuit on July 22.
[143]
In May 2011, DOMA-based challenges by the Department of Justice to joint petitions for bankruptcy by married same-sex couples were denied in two cases, one in the Southern District of New York on May 4 and one in the Eastern District of California on May 31. Both rulings stressed practical considerations and avoided ruling on DOMA.
[144][145]
On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy Court for the Central District of California signed an opinion in the case
in re Balas and Morales that found that a same-sex married couple filing for bankruptcy "have made their case persuasively that DOMA deprives them of the equal protection of the law to which they are entitled." The decision found DOMA Section 3 unconstitutional and dismissed BLAG's objections to the joint filing:
[146][147]
Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors' right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.
A spokesman for House Speaker Boehner said BLAG would not appeal the ruling,
[148] On July 7, 2011, the DOJ announced that after consultation with BLAG it would no longer raise objections to "bankruptcy petitions filed jointly by same-sex couples who are married under state law".
[149]
Bi-national same-sex couples were kept from legally living in the United States by DOMA's Section 3, which prevented one spouse from sponsoring the other for a
green card.
[150] Following some uncertainty after the Obama Administration determined Section 3 to be unconstitutional, the
United States Citizenship and Immigration Services (USCIS) reaffirmed its policy of denying such applications.
[151] With respect to obtaining a visitor's visa, Bureau rules treated bi-national same-sex spouses the same as bi-national opposite-sex unmarried partners under the classification "cohabiting partners".
[152]
Tim Coco and Genesio J. Oliveira, a same-sex couple married in Massachusetts in 2005, successfully challenged this policy and developed a model since followed by other immigration activists.
[153] The U.S. refused to recognize their marriage, and in 2007 Oliveira, a Brazilian national, accepted "voluntary departure" and returned to Brazil. They conducted a national press campaign
[154] A
Boston Globe editorial commented, "Great strides toward equality for gays have been made in this country, but the woeful fate of Tim Coco and Genesio Oliveira shows that thousands of same-sex couples, even in Massachusetts, still aren't really full citizens."
[155] The editorial gained the attention of Senator
John F. Kerry, who first lobbied
Attorney General Eric Holder without success.
[156] He then gained the support of
Homeland Security Secretary Janet Napolitano, who granted Oliveira
humanitarian parole, enabling the couple to reunite in the U.S. in June 2010.
[157] Humanitarian parole is granted on a case-by-case basis at the Secretary's discretion.
[158]
On September 28, 2011, in
Lui v. Holder, U.S. District Court Judge
Stephen V. Wilson rejected a challenge to DOMA, citing
Adams v. Howerton (1982).
[159] The plaintiffs in that case had unsuccessfully challenged the denial of immediate relative status to the same-sex spouse of an American citizen.
[160][161] Early in 2012, two bi-national same-sex couples were granted "deferred action" status, suspending deportation proceedings against the non-U.S. citizen for a year.
[162][163] A similar Texas couple had a deportation case dismissed in March 2012, leaving the non-citizen spouse unable to work legally in the United States but no longer subject to the threat of deportation.
[164]
On January 5, 2012, the
U.S. District Court for the Northern District of Illinois in Chicago decided the suit of a same-sex binational couple. Demos Revelis and Marcel Maas, married in Iowa in 2010, sought to prevent the USCIS from applying Section 3 of DOMA to Revelis's application for a permanent residence visa for Maas and, in the court's words, "that their petition be reviewed and decided on the same basis as other married couples."
[165] Judge
Harry D. Leinenweber, a Reagan appointee, denied the government's motion to dismiss. BLAG has argued for the suit to be dismissed.
[166] In July the court stayed proceedings until mid-October because the USCIS is considering denying the plaintiffs' request on grounds unrelated to DOMA.
[167]
On April 2, 2012, five bi-national same-sex couples represented by
Immigration Equality and Paul, Weiss filed a lawsuit,
Blesch v. Holder, in the
District Court for the Eastern District of New York, claiming that Section 3 of DOMA violated their equal protection rights by denying the U.S. citizen in the relationship the same rights in the green card application process granted a U.S. citizen who is in a relationship of partners of the opposite sex.
[166] On July 25, Chief Judge
Carol Bagley Amon stayed the case pending the resolution of
Windsor by the Second Circuit.
[168]
Immigration rights advocate Lavi Soloway reported on June 19, 2012, that the Board of Immigration Appeals (BIA) had in four cases responded to green card denials on the part of the U.S. Citizenship and Immigration Services (USCIS) by asking the USCIS to document the marital status of the same-sex couples and determine whether the foreign national would qualify for a green card in the absence of DOMA Section 3. He said the BIA is "essentially setting the stage for being able to approve the petitions in a post-DOMA universe."
[169]
On April 19, 2013, U.S. District Judge
Consuelo Marshall ordered that a suit brought in July 2012 by Jane DeLeon, a Philippine citizen, and her spouse, Irma Rodriguez, a U.S. citizen, could proceed as a class action. The plaintiffs, represented by the Center for Human Rights and Constitutional Law, contended that DeLeon was denied a residency waiver because of DOMA Section 3.
[170][171]
On June 28, 2013, the USCIS notified U.S. citizen Julian Marsh that it had approved the green card petition for his Bulgarian husband Traian Popov. Both are residents of Florida.
[172] On July 3, the USCIS office in Centennial, Colorado, granted Cathy Davis, a citizen of Ireland, a green card based on her marriage to U.S. citizen Catriona Dowling.
[173]
In 2009,
United States Court of Appeals for the Ninth Circuit Judge
Stephen Reinhardt declared DOMA unconstitutional in
in re Levenson, an employment dispute resolution tribunal case, where the federal government refused to grant spousal benefits to Tony Sears, the husband of deputy federal public defender Brad Levenson.
[174][175] As an employee of the federal judiciary, Levenson is prohibited from suing his employer in federal court. Rather, employment disputes are handled at employment dispute resolution tribunals in which a federal judge hears the dispute in their capacity as a dispute resolution official.
In August 2007, the
Tenth Circuit Court of Appeals in the case of
Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere.
[176] By contrast, in 2011 Louisiana in
Adar v. Smith successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples.
[177] The Supreme Court refused to hear the case on appeal.
[178]
On October 2, 2009, a Texas judge granted a divorce to two men married in Massachusetts. On August 31, 2010, the
Fifth Court of Appeals in
Dallas reversed the lower court's ruling.
[179][180] On January 7, 2011, the Third Court of Appeals in
Austin allowed a divorce granted by a lower court to a lesbian couple married in Massachusetts to stand.
[181] Both cases await action by the
Texas Supreme Court.
[182]
A majority of the states, including some that have benefits for same-sex relationships, have restricted recognition of marriage to unions of one man and one woman either by statute or an amendment to their state constitution.
[n 5] Most do not recognize same-sex unions from other jurisdictions, including other jurisdictions of the United States. States that grant same-sex marriages recognize same-sex marriages from other jurisdictions.
Same-sex marriage has been legalized in
California,
[184] Connecticut,
[185] Delaware,
Iowa,
Maine,
[186] Maryland,
[187] Massachusetts,
Minnesota,
New Hampshire,
New York,
Rhode Island,
Vermont,
Washington, the
District of Columbia, and five
Native American tribes.
[188] Other states that recognize same-sex marriages as civil unions or domestic partnerships include Colorado,
[189] California,
[190] Hawaii, Illinois,
[191]Nevada,
New Jersey, Oregon and Wisconsin. Massachusetts recognizes civil unions and domestic partnerships established elsewhere as the legal equivalent of marriage.
[192]
- ^ For a review of the play see Barnes, Clive (December 10, 1971). "'Nightride'–No Apologies and No Regrets". New York Times. Retrieved February 7, 2012.
- ^ For the theological background beginning in 1967, see Fiske, Edward B. (December 3, 1967
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