What to do about DOMA?

This is actually kind of ironic...  Barack Obama ran for president on a platform that included repeal of the federal Defense of Marriage Act (DOMA), the statute that purports to relieve states of any constitutional obligation they might have to recognize same-sex marriages contracted in other states, and establishing for the first time a federal statutory definition of marriage, limited solely to the union of one man and one woman, and denying the use of the term "spouse" for federal law purposes to same-sex partners united in marriage under the law of any state.  Also part of his platform was a pledge to extend spousal benefits to same-sex partners of federal employees.  These campaign positions were reiterated on the issues agenda included in the new content placed on the official White House website at the moment when Mr. Obama officially took office on January 20.   But, as with his other promises concerning LGBT rights, the President adopted a "go slow" stance, indicating that dealing with the economic crisis and the wars in Iraq and Afghanistan were the first priority.

However, the LGBT community is demanding a response more quickly.  Earlier this month, Gay & Lesbian Advocates & Defenders filed a lawsuit in the U.S. District Court in Boston, challenging the constitutionality of Section 3 of DOMA, the section establishing the exclusive different-sex definition of marriage for purposes of federal law.  And, two federal court employees on the west coast are seeking enforcement of rulings they obtained earlier this year from two 9th Circuit judges, Alex Kozinski and Stephen Reinhardt, holding that they are entitled to spousal benefits under the court's employee benefits program for their same-sex spouses.  (Both employees, California residents, married their partners after the California marriage decision went into effect.)   The federal Office of Personnel Management sent a letter on February 20, according to a report this morning in The New York Times, advising the Administrative Office of the U.S. Courts that it may not comply with the Kozinski and Reinhardt orders, so long as DOMA remains in effect. 9th Circuit staff attorney Karen Golinski has already filed for a hearing before Kozinski, asking for enforcement of his prior ruling, and Brad Levenson, a federal public defender in Los Angeles, has indicated he will make a similar application to Judge Reinhardt. 

In the meantime, Rep. Jerry Nadler and Senator Patrick Leahy and a crowd of co-sponsors have reintroduced a bill that would recognize same-sex partners for immigration purposes, and Rep. Tammy Baldwin and Senator Joseph Lieberman are poised to introduce a bill that would extend spousal benefits to same-sex partners of federal employees.  (Certainly, Congress can legislate exceptions to DOMA by enacting such legislation.)

So, the pressure is on.  The Obama Administration needs to answer the complaint in Gill v. Office of Personnel Administration.  The Obama Administration needs to decide whether it is going to stick with the position articulated in the OPM February 20 letter to the courts.  The Obama Administration needs to decide whether to actively champion passage of the Nadler-Leahy and Baldwin-Lieberman bills.  Most importantly, the Obama Administration needs to decide whether it will expend some political capital now, when the president enjoys a high level of public approval, to introduce and push for an overall repeal of DOMA.  

It is past time for the Administration to continue mouthing its good intentions to do something in the future.  The issue is here and it is time for action.  A motion to dismiss the Gill case would be an unfriendly act against the LGBT community, most certainly, in terms of immediate strategic decisions facing the Administration, since it would require arguing that Congress had a legitimate justification for discriminating against same-sex couples, relying on the offensive rationales articulated in the legislative history -- positions and rationales that the president purportedly disavowed on the campaign trail.

To compound the irony, of course, that OPM letter, which was issued by an underling in the department, emanates from an agency awaiting confirmation of its newly appointed director, an openly-gay man named M. John Berry, who upon taking office will also become the lead titular defendant in the Gill case.  (Is there something odd about suing ourselves?)  Berry has a distinguished career as an "out" gay man in the federal government, including a successful stint as head of the National Zoo in Washington.  When he takes over the direction of OPM, he will be charged with administering the offensive policies that the Obama Administration has sworn to repeal.  How will he act in that situation? 

Is it possible that the Administration can negotiate a settlement of the Gill case while DOMA is still in effect?  The lawsuit does not just involve federal employee benefits.  In fact, it challenges a handful of DOMA applications to a variety of situations, including passport practices of the State Department, Internal Revenue Code provisions as construed to comply with DOMA, Social Security benefits....  The list goes on.  So passage of the two federal bills won't do it; only a DOMA repeal and affirmative efforts to adoptive inclusive definitions of federal statutes and regulations complying with the obligation of equal protection of the laws is needed.

It is time for the Administration to deal with the fact that same-sex couples have married in Massachusetts, Connecticut, California, and Canada, and are living throughout the U.S. as second-class citizens denied federal recognition of their marriages, as are those who have formed civil unions or domestic partnerships in Vermont, New Hampshire, New Jersey, Oregon, Washington State...

In Romer v. Evans (1996), the Supreme Court said that our Constitution does not allow for different classes of citizenship.  All Americans are entitled to equal standing under the law.  Everybody who has not forfeited his right to liberty by being adjudicated a criminal is entitled to the same first-class rights of citizenship under our laws.  There can be no clearer example of a prima facie violation of that principle than DOMA, as Judge Reinhardt recognized (and Judge Kozinski, no liberal, intimated) in their rulings on the 9th Circuit benefit grievances.  It is time to act, Mr. President!

Comments

[VG]

Professor,

Please give your thoughts on the interstate part of DOMA. My impression since reading it has been that it really does not add anything new to the already existing situation, because "Full Faith and Credit" applies so long as there is no public policy against it, and certainly having a statutory or constitutional baby-DOMA would provide that explicit policy for a state (at least as concerns the "status of marriage"; I'm obviously not talking about incidents of marriage that would be allowed through contracts or quasi-contracts).

My question is - am I right that the interstate part of federal DOMA was just a way for Congress to pretend it did something?

[Art Leonard]

Actually, a good argument can be made that the Full Faith and Credit Clause is essentially irrelevant to the issue of whether one state recognizes a marriage that was contracted under the laws of another state. When Congress enacted DOMA in 1996, it was reacting to both the propaganda of gay rights advocates and the scare-statements of anti-gay rights advocates who suggested that if the pending Hawaii litigation resulted in same-sex couples being able to marry there, since there was no residency requirement in Hawaii, the state would be flooded with non-resident same-sex couples getting married and then returning to their homes on the mainland and demanding recognition of their marriages.

When Congress held hearings on the proposed legislation, they received testimony -- from no less a constitutional law authority than Professor Laurence Tribe of Harvard, author of the leading treatise titled "American Constitutional Law," that the Full Faith and Credit Clause does NOT require states to recognize marriages made in other states. The FFC is concerned with the recognition of judicial judgments, and with requiring states to accord to official acts of other states the status those acts would enjoy in the states where they were undertaken. Somehow the performance of a marriage pursuant to a license issued by the state in a clerical act consistent with its marriage laws struck Prof. Tribe as not coming within the range of "public acts and records" that the FFC is concerned with. Under this reading of the constitutional requirement, if a same-sex couple marries in Connecticut, for example, and then goes to N.Y., a N.Y. court would be required to recognize that the couple has the status of marital partners in Connecticut, but would not be required to recognize them as having that status in N.Y. So let's say they jointly purchased propery in Connnecticut and used it for a weekend and vacation home, but lived in New York. Their form of ownership of that Connecticut property would be that accorded to property jointly owned by a married couple,and if one of them were to die and their estate was being probated in a N.Y. court, the court would be required by FFC to treat that Connecticut property as subject to the Connecticut laws governing property held jointly by married couples. But it would not, by constitutional mandate, have to do the same regarding property they acquired in N.Y.

The legal principle under which courts and government agencies determine whether to recognize a "foreign" marriage is a doctrine called "comity." It is an equitable and discretionary doctrine, and this is where the public policy of the state comes into play. The courts of the state are supposed to take into account its public policy in deciding whether to exercise comity to recognize a foreign marriage.

About a year ago, an appellate court in New York exercised comity to recognize a same-sex marriage contracted in Canada. (Since the FFC does not apply other than to judgments, acts and public records of the states, obviously it does not apply to the issue of recognizing marriages contracted in other countries.) Because New York did not adopt a mini-DOMA, there is no affirmative statement of public policy in N.Y. against recognizing foreign same-sex marriages. Furthermore, the court found that in general public policy in N.Y. is neutral or affirmative towards the recognition of a legal status for same-sex couples. The state provides domestic partnership benefits for its employees' same-sex partners, forbids sexual orientation discrimination, and has legislated limited recognition for partners in the matter of funeral arrangements, and many municipalities have adopted domestic partnership ordinances. In addition, general principles of comity support recognizing marriages that were legal where they were performed and that do not violate principles of natural law -- construed to pose objections to marriages that are incestuous or polygamous. Thus, the court ordered recognition of the marriage, and half a dozen trial courts around the state have filed suit over the past year, recognizing marriages contracted in Canada and Massachusetts.

The point is that you are correct in observing that the part of DOMA purporting to make an exception to FFC is essentially symbolic. The problem is that all but a handful of states have passed either a mini-DOMA or an anti-same-sex marriage constitutional amendment or, in some cases, both. Which means that in deciding on whether to extend comity to a marriage, the courts of those states have before them an affirmative statement of public policy denying recognition, and so comity will not be exercised.

So, it turns out that this part of DOMA is superfluous. The only part that need be attacked for substantive reasons at this time is Section 3, as per the GLAD lawsuit. But getting the entire thing off the books would certainly be salutary. It arguably exceeded Congress's legislative authority in any event, and it is, on its face, as much a violation of the 5th Amendment's equal protection requirement as Section 3.