[author: Courtney Sherwood]
The knot of contradictory laws governing same-sex marriages in the U.S. may become even more tangled in the months ahead, thanks to the Supreme Court’s decision to wait at least another year before reviewing challenges to the federal Defense of Marriage Act (DOMA.)
The portion of the law which prohibits the federal government from recognizing gay marriage has been found unconstitutional by federal courts in California and Massachusetts, and challenges are under way in Connecticut, New York, Oklahoma and Pennsylvania. Rulings from Louisiana and Texas seem to support the Defense of Marriage Act. And in some immigration cases judges have sided with DOMA, while at other times they’ve ruled against it.
Decisions on both sides
With several rulings on hold pending appeal, and more cases still moving through the justice system, it’s little surprise that gay couples may not know where they stand.
DOMA authorizes each state to set its own rules governing same-sex relationships. Take a hypothetical pair, Adam and Steve, who live in Washington, D.C., where – along with six other states – same-sex marriages can be performed. When Adam drives north to work in Maryland, that state recognizes his marriage as valid, even though it does not grant marriage licenses to gay couples. When Steve commutes south to Virginia, however, his union loses any legal standing under that state’s laws. At tax time, the couple can file their state tax returns as a married couple in Washington, D.C., but must file separately with the IRS.
“If you look at every federal case about DOMA, there are decisions on both sides,” said Ari Ezra Waldman, a professor at California Western School of Law, who, among other things, researches and teaches gay rights. “However, the trend suggests that there is growing, broad agreement that DOMA Section 3 is unconstitutional,” he said, referring to the provision that requires the federal government to recognize only opposite-sex marriage for purposes of federal law.
In 2010, a group of same-sex married couples and widowers in Massachusetts won a suit in which they sought spousal benefits from the U.S. Office of Personnel Management, which administers federal employee benefits. The judge in that case put his ruling on hold pending appeal, but since then “every court to address the issue has declared DOMA Section 3 unconstitutional,” Waldman said.
In 2011, a panel of California bankruptcy court judges ruled DOMA’s prohibitions on married same-sex couples filing joint bankruptcy to be unconstitutional. And in February, a U.S. District Court judge declared DOMA Section 3 unconstitutional as applied to Karen Golinski, a federal employee who wanted to enroll her wife in her health insurance plan. At the same time, President Barack Obama has refused to defend DOMA in court, and has asked the Justice Department to review, and ultimately stop, deportation of gay foreign nationals who are married to U.S. citizens.
Waldman described these decisions as “trending toward consensus,” and it’s widely believed that same-sex marriage is coming. Despite this trend, however, DOMA remains in place across the country as rulings wind their way toward the Supreme Court.
The First Circuit Court of Appeals will hear oral arguments in April on the Massachusetts same-sex partner benefits case, with a decision likely two months later, Waldman said. The Golinski ruling was recent enough that any appellate court decision may be years off.
Meanwhile, challenges to state same-sex marriage bans are proceeding on a parallel track to the DOMA challenges. In February, the U.S. Ninth Circuit Court of Appeals upheld a ruling that California’s Proposition 8 gay marriage ban violated the U.S. Constitution. Proponents of the gay marriage ban are expected to appeal.
It’s not clear whether the Supreme Court will ultimately choose to weigh in on the Proposition 8 challenge, a DOMA case, or a combination of gay marriage legal suits.
“The court has a busy term this year, so I do not see any ulterior motive in DOMA not coming before the court this term, which will already be over in June,” Waldman said. “The pace of the cases moving through the lower courts would make anything else difficult.”
Read more about what federal same-sex marriage will mean for couples that choose to tie the knot.