Blog post by ADF Senior Vice President; Senior Counsel Jordan Lorence
Wednesday the Senate Judiciary Committee heard testimony on a bill to repeal the federal Defense of Marriage Act (DOMA). ADF attorney Austin Nimocks testified against the bill and did an excellent job explaining the purpose of marriage in having children raised in the best social environment possible, one consisting of the child’s own biological mother and father who are united in marriage, and the importance of maintaining that common understanding of marriage in federal law. DOMA was signed into law by President Clinton in 1996 after being approved by huge majorities in both houses of Congress.
However, Democrats, including those on the Senate Judiciary Committee, now oppose DOMA, even though many of them voted for it in 1996 because they now support redefining marriage to include same sex couples. Although the Democrats have a 53-47 majority in the Senate, it is uncertain whether this repeal could overcome a filibuster in the Senate, and it would not be approved by the Republican majority in the House of Representatives. On Monday, President Obama said that he supported repeal of DOMA.
DOMA has two major parts. One part allows states to decline to recognize a marriage consisting of a same sex couple that was legally entered into in another state. The other major part of DOMA defines marriage only as one man and one woman for purposes of federal law.
I was able to assist Austin and watch the DOMA hearing at the Senate Judiciary Committee. I offer several observations:
1. The hearing hid the fact that the DOMA repeal could force all states to recognize same-sex marriages.
The Democrats who orchestrated this hearing cleverly directed its focus away from one of the major aspects of the DOMA repeal legislation that many would oppose – DOMA repeal would wipe out the provision that says states are free to decline to recognize same-sex marriages legally obtained in another state. We would see same-sex couples who have obtained a marriage license in one of the few states where it is legal, come to one of the many states with a state DOMA, and argue in court that the second state must recognize their same-sex marriage license, even though same sex marriage is not legally recognized in the second state.
This gets into a complicated area of constitutional law concerning “full faith and credit.” Generally, full faith and credit means this: If a court in State A enters a judgment, for example, that Mary owes Sam $2000, then Sam can go to State B to get a court order to take some of Mary’s assets there to pay the judgment. State B cannot refuse to honor the court decision from State A under the Constitution’s Full Faith and Credit Clause. But how does that apply to marriage, because a marriage license is not a court order? Generally, states do not have to recognize licenses obtained in another state. So, if someone in State A obtains a driver’s license, or a license to practice law, or a realtor’s license or a marriage license, State B has the discretion whether to recognize that license or not.
Whether the second state will recognize the license depends on what kind of license we are talking about. Most states generally recognize marriage licenses entered into in other states, so a man and a woman do not have to get married again when they move to another state. In contrast, states generally require people to get new driver’s licenses and licenses to practice law if they move to another state. Federal DOMA made it very clear that a state recognizing only marriages of one man and one woman would not have to recognize a marriage license from another state obtained by a same-sex couple. As a constitutional attorney, I am not exactly sure what the repeal of DOMA would mean for this area of law. States might very well retain the power to decline to recognize marriage licenses from another state, because of the states’ general authority under our Constitution’s system of federalism.
The Senate hearing on Wednesday focused on couples who lived in the five states that have legalized same-sex marriage (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and on Sunday, New York, as well as the District of Columbia). They had legal marriages under state law, but were not recognized under federal law. However, the hearing barely mentioned that these couples could move, for example, to one of the 30 states with a state constitutional provision defining marriage only as one man and one woman, and challenging that provision. In effect, this may be an effort to force all states to recognize same-sex marriage. The hearing would have had a different tone if the Judiciary Committee had focused on this important effect of the proposed DOMA repeal.
2. Many others besides same-sex couples have problems obtaining federal benefits, and Congress can fix the problems without redefining marriage. The hearing consisted of a number of people who had obtained a marriage license in one of the states that has legalized same-sex marriage, and how they have had trouble obtaining federal benefits. For example, one of the same-sex partners dies, and the surviving partner cannot obtain Social Security benefits that a married couple consisting of a man and a woman could obtain.
But the hearing did not explain that others have the same problem. For example, a single person who is older and on Social Security benefits cannot pass his benefits to anyone else when he dies, but a surviving married person could obtain the benefits of his or her deceased spouse. Repealing federal DOMA would not help this single person pass his benefits to his niece or nephew. His money would simply go back to the U.S. Treasury. If a man is a federal worker and he cares for his sick grandmother, repeal of federal DOMA will not help him add her to his federal health insurance and he will not receive any Social Security money when she dies, because they are blood relatives who cannot marry. A woman who takes care of her adult brother with Down’s Syndrome must pay federal tax on the insurance coverage her employer extends to her brother.
Repeal of federal DOMA will do nothing to ease these unnecessary tax burden the brother and sister described above cannot legally marry anywhere. The benefits issues should be addressed separately and Congres should enact solutions that help everyone with the problem, not just same sex couples.
Also, several legal challenges to federal DOMA are in courts around the nation. The most advanced cases are in Massachusetts, pending before the U.S. Court of Appeals for the First Circuit in Boston.
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