Defense of Marriage Act (DOMA)

  • November 7, 2014

    by Paul Guequierre

    In what appears to be the circuit split the U.S. Supreme Court has been waiting for, a panel of the U.S. Court of Appeals for the Sixth Circuit upheld same-sex marriage bans in four states Thursday. While this 2-to-1 ruling surely counts as a loss, it may be exactly what proponents of marriage equality have been waiting for. When asked in September when the Supreme Court might take up marriage, Justice Ruth Bader Ginsburg said to keep an eye on the Sixth Circuit. That we did, and now we’re hoping the high court will determine once and for all that marriage equality is the law of the land. 

    Writing for the majority, Judge Joe Sutton said, “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

    Thursday’s ruling was the first time a court at that level has upheld a state marriage ban since the historic victories for marriage equality in 2013 – the striking down of Section Three of the Defense of Marriage Act (DOMA) and the dismantling of California’s Prop. 8. Since then, LGBT advocates have ridden a wave of victories in courts at all levels. (A few weeks ago, in what was clearly the exception, not the rule, a federal judge upheld Puerto Rico’s ban on marriage equality.)

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.  

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

  • June 26, 2013
    Guest Post

    by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.

    The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

    Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

    Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

    Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

    Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.

  • June 26, 2013

    by Jeremy Leaming

    A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people. 

    In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

    In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

    But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

    In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”  In this instance DOMA did not survive that type of scrutiny.

    In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

    “DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”