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.

Links:
1. Austin Nimocks written testimony
2. The entire DOMA hearing on c-span.
3. Youtube video of Austin Nimocks testimony and Q&A

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     The Minnesota House of Representatives late Saturday night approved an amendment to the state Constitution defining marriage as one man and one woman only. The proposed amendment, passed earlier by the state Senate, will now appear on the ballot in November 2012. Voters must approve it for it to become part of the state Constitution.

   House members voted mainly along party lines, although some voted against the majority of their party.  Four Republicans voting against the marriage amendment, and two Democrats voting in favor of the marriage amendment.  In the state Senate, one Democrat joined all of the Republican state senators to approve the amendment.

     This historic vote became possible last November when Minnesota voters unexpectedly gave Republican legislators a majority in both houses of the state legislature.  Democrats had promised in their campaigns to legalize same-sex marriage, as well as other measures, but Minnesota voters denied them the majorities in the legislature they had held for years.  The governor has no role in the amendment process, so Democratic governor Mark Dayton, narrowly elected last November and who strongly supports redefining marriage to include same sex couples, can do nothing as governor to stop the measure from going to the ballot.

    Marriage measures have appeared on the ballot in 31 states, and voters in all 31 states have rejected redefining marriage to include same sex couples. Thirty of the 31 statewide votes involved approval of state constitutional amendments. In the 31st state, Maine voters in 2009 used the referendum process to repeal a state law the legislature enacted to redefine marriage.

The Minnesota Senate today approved a state constitutional amendment defining marriage as one man and one woman by a vote of 38-27. The Minnesota House of Representatives plans to take up the amendment before the end of the session, which ends in two weeks. If the House approves the amendment, which is expected, Minnesota voters would vote on the proposed amendment in the November 2012 election.  Passage of the marriage amendment became possible after Republicans gained control of both Houses of the Minnesota Legislature after the November 2010 elections.

  The U.S. Navy has rescinded an order permitting military chaplains to officiate at same-sex weddings on military bases, according to the Associated Press.    The news story states in part:

 WASHINGTON (AP) – Under pressure from more than five dozen House lawmakers, the Navy late Tuesday abruptly reversed its decision that would have allowed chaplains to perform same-sex unions if the Pentagon decides to recognize openly gay military service later this year.

In a one-sentence memo obtained by The Associated Press, Rear Adm. Mark Tidd, chief of Navy chaplains, said his earlier decision has been “suspended until further notice pending additional legal and policy review and interdepartmental coordination.”

The Navy said its lawyers wanted to do a more thorough review of the legal decision that allowed Navy chaplains to receive training to perform civil unions on military bases, but only in states where same-sex unions are legal.

The full AP story is here.  

This news story shows that last December’s repeal by Congress of the federal law prohibiting people who engage in homosexual conduct from serving in the military (sometimes called Don’t Ask, Don’t Tell or DADT) raises major questions on how it  interacts with the federal Defense of Marriage Act (DOMA), which defines marriages as one man and one woman for all purposes of federal law.  And Congress never really debated or discussed the possible ”domino effect” of repeal of DADT on DOMA.  The hasty and rushed Congressional debate on repeal of DADT described the people affected as individuals who engage in homosexual conduct, and did not examine how the repeal would affect same-sex couples.  This narrow casting of the debate on the DADT repeal obscured important legal and practical questions. For example, if the military allows open homosexuals to serve in the military, must the military open base housing for married couples to same-sex couples if they are legally married in one of the states or nations that allows same sex marriage or same-sex civil unions?  Must it extend military benefits to same-sex couples?  What about allowing same-sex weddings in military chapels?  Federal DOMA would seem to prevent those changes, but  Congress never debated how the repeal of Don’t Ask, Don’t Tell would affect federal DOMA.  The Navy’s earlier order permitting same-sex weddings in military chapels shows the consequences of rushing through the repeal of DADT. Congress should not fully implement the repeal of Don’t Ask Don’t Tell until it has fully investigated how it will affect federal DOMA.

Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.