Thursday, May 31, 2012

Federal DOMA unconstitutional.

For the first time, a U.S. Court of Appeals has ruled that the DOMA is unconstitutional. 
Edited excerpts from the opinion follow.  Especially noteworthy is the court's treatment of the federalism issue. You don't often see an opinion relying on both gay rights and federalism arguments.

"[The federal Defense of Marriage Act]DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute,. . . must--having only two operative paragraphs--be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for purposes of federal law:
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.

Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states.       DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.
         DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.  Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
         In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA's opposite-sex marriage definition--such as Massachusetts' state Medicaid program and veterans' cemeteries."


  1. Three big things I disagreed with Clinton on:NAFTA, AWB, and signing this wretched thing that denies civil rights and goes against our federal system.

  2. GEJ:
    Thanks! Clinton was not one of my favorites. For instance, both Waco (Branch Davidian) and the SWAT Miami child (Elian Gonzalez) seizure occurred on his watch. The latter was legal, it was just handled extremely badly. He gave us Janet Reno, one of the worst of recent A.G.'s. He also supported gun bans for law-abiding public housing residents. On the other hand, his watch was a period of relative prosperity and he became more of a pragmatist and less of an ideologue as his term progressed. He ended up being more moderate than many expected.