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Margherita Hack
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Idiom
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Cloud computing
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English modal verbs
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Hartz concept
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Web browser
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Massive open online course
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Arthur Conan Doyle
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Defense of Marriage Act
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List of Italian musical terms used in English
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WIKIMAG n. 8 - Luglio 2013
Defense of Marriage Act
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Traduzione
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- Togli il segno di spunta per disattivarla
The Defense of Marriage Act (DOMA) (Pub.L.
104–199, 110 Stat. 2419,
enacted September 21, 1996,
1 U.S.C. § 7
and
28 U.S.C. § 1738C)
is a
United States federal law that allows states to refuse to
recognize
same-sex marriages performed under the laws of other states.
Until Section 3 of the Act was ruled
unconstitutional in 2013, DOMA, in conjunction with other
statutes, had also effectively barred same-sex married couples
from being recognized as "spouses" for purposes of federal laws,
or receiving federal marriage benefits.
Initially introduced by Republicans in May 1996, DOMA passed
both houses of
Congress by large majorities and was signed into law by
President
Bill Clinton in September 1996. By defining "spouse" and its
related terms to signify a
heterosexual couple in a recognized marriage, Section 3
codified non-recognition of
same-sex marriages for all federal purposes, including
insurance benefits for government employees,
social security survivors' benefits, immigration,
bankruptcy, and the filing of joint
tax returns, as well as excluding same-sex spouses from the
scope of laws protecting families of federal officers (18 U. S.
C. §115), laws evaluating financial aid eligibility, and federal
ethics laws applicable to opposite-sex spouses.[1]:23–24
Clinton – along with key legislators – later advocated for
DOMA's
repeal. The
Obama administration announced in 2011 that it had concluded
Section 3 was unconstitutional and, though it would continue to
enforce the law while it existed, it would no longer defend it
in court. In
United States v. Windsor (2013), the
U.S. Supreme Court declared Section 3 of DOMA
unconstitutional under the
Due Process Clause of the
Fifth Amendment.[1]
Background
The issue of legal recognition of same-sex marriage attracted
mainstream attention infrequently until the 1980s. A sympathetic
reporter heard several gay men raise the issue in 1967 and
described it as "high among the deviate's hopes".[2]
In one early incident, gay activist
Jack Baker brought suit against the state of Minnesota in
1970 after being denied a marriage license to marry another man,
and in
Baker v. Nelson the
Minnesota Supreme Court ruled that limiting marriage to
opposite-sex couples did not violate the United States
Constitution. Baker later changed his legal name to Pat Lynn
McConnell and married his male partner in 1971, although the
marriage was not legally recognized.[3][4]
A 1972 off-Broadway play, Nightride, depicted, in the
author's words, "a black–white homosexual marriage".[5][n
1] In 1979,
IntegrityUSA, an organization of gay Episcopalians, raised
the issue as the Episcopal Church in the U.S. considered a ban
on the ordination of homosexuals as priests.[6][n
2]
The
New York Times said the question was "all but dormant"
until the late 1980s when, according to gay activists, "the AIDS
epidemic... brought questions of inheritance and death benefits
to many people's minds."[7]
In May 1989, Denmark established registered partnerships that
granted same-sex couples many of the rights associated with
marriage.[7]
In the same year, New York's highest court ruled that two
homosexual men qualified as a family for the purposes of New
York City's rent-control regulations.[7]
Within the movement for gay and lesbian rights, a debate between
advocates of sexual liberation and of social integration was
taking shape, with
Andrew Sullivan publishing an essay "Here Comes the Groom"
in The New Republic in August 1989 arguing for same-sex
marriage: "A need to rebel has quietly ceded to a desire to
belong", he wrote.[4]
In September 1989, the
State Bar Association of California urged recognition of
marriages between homosexuals even before gay rights advocates
adopted the issue.[7]
Gary Bauer, head of the
socially conservative
Family Research Council, predicted the issue would be "a
major battleground in the 1990s".[7]
In 1991, Georgia Attorney General
Michael J. Bowers withdrew a job offer made to a lesbian who
planned to marry another woman in a Jewish wedding ceremony.[8]
In 1993, a committee of the
Evangelical Lutheran Church in America released a report
asking Lutherans to consider blessing gay marriage and stating
that lifelong abstinence was harmful to gay and lesbian couples.
The Conference of Bishops responded, "There is basis neither in
Scripture nor tradition for the establishment of an official
ceremony by this church for the blessing of a homosexual
relationship."[9]
In a critique of radicalism in the gay liberation movement,
Bruce Bawer's A Place at the Table (1993) advocated
the legalization of same-sex marriage.[10]
In
Baehr v. Miike (1993), the
Supreme Court of Hawaii ruled that the state must show a
compelling interest in prohibiting same-sex marriage.[11]
This finding prompted concern among opponents of same-sex
marriage that same-sex marriage might become legal in Hawaii and
that other states would recognize or be compelled to recognize
those marriages under the
Full Faith and Credit Clause of the
United States Constitution.
Text
The main provisions of the act were as follows:[12]
- Section 1. Short title
- This Act may be cited as the "Defense of Marriage Act".
- Section 2. Powers reserved to the states
- No State, territory, or possession of the United States,
or Indian tribe, shall be required to give effect to any
public act, record, or judicial proceeding of any other
State, territory, possession, or tribe respecting a
relationship between persons of the same sex that is treated
as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.
- Section 3. Definition of marriage (ruled
unconstitutional by the Supreme Court)
- In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States,
the word 'marriage' means only a legal union between one man
and one woman as husband and wife, and the word 'spouse'
refers only to a person of the opposite sex who is a husband
or a wife.
Enactment
Georgia Representative
Bob Barr, then a Republican, authored the Defense of
Marriage Act and introduced it in the
House of Representatives on May 7, 1996. Senator
Don Nickles, Republican of Oklahoma, introduced it in the
Senate.[13]
The
House Judiciary Committee stated that the Act was intended
by Congress to "reflect and honor a collective moral judgment
and to express moral disapproval of homosexuality."[14]
The Act's congressional sponsors stated, "[T]he bill amends the
U.S. Code to make explicit what has been understood under
federal law for over 200 years; that a marriage is the legal
union of a man and a woman as husband and wife, and a spouse is
a husband or wife of the opposite sex."[15]
Nickles said, "If some state wishes to recognize same-sex
marriage, they can do so". He said the bill would ensure that
"the 49 other states don't have to and the Federal Government
does not have to."[13]
In opposition to the bill, Colorado Rep.
Patricia Schroeder said, "You can't amend the Constitution
with a statute. Everybody knows that. This is just stirring the
political waters and seeing what hate you can unleash."[13]
Barr countered that the
Full Faith and Credit Clause of the Constitution grants
Congress power to determine "the effect" of the obligation of
each state to grant "full faith and credit" to other states'
acts.[13]
The 1996 Republican Party platform endorsed DOMA, referencing
only Section 2 of the act: "We reject the distortion of
[anti-discrimination] laws to cover sexual preference, and we
endorse the Defense of Marriage Act to prevent states from being
forced to recognize same-sex unions."[16]
The Democratic Party platform that year did not mention DOMA or
marriage.[17]
In a June 1996 interview in the gay and lesbian magazine
The Advocate, Clinton said, "I remain opposed to
same-sex marriage. I believe marriage is an institution for the
union of a man and a woman. This has been my long-standing
position, and it is not being reviewed or reconsidered."[18]
In the same year, in response to a citizen's letter, he also
wrote that "raising this issue is divisive and unnecessary."[19]
Some Democrats viewed the legislation as politically
motivated rather than a response to societal developments. Sen.
Ted Kennedy of Massachusetts called DOMA the "Endangered
Republican Candidates Act"[20]
and said it was "a mean-spirited form of legislative gay-bashing
designed to inflame the public four months before the November
election."[21]
Gay and lesbian rights organizations found there was little time
to lobby in opposition, because the Clinton administration
preferred to have DOMA become law as quickly as possible and not
become an issue in the fall presidential campaign.[20]
Kennedy led an effort to pass hiring and employment protection
for gays and lesbians, the
Employment Non-Discrimination Act (ENDA), in concert with
DOMA, but the effort failed in the Senate by one vote.[21]
The bill moved through Congress on a legislative fast track
and met with overwhelming approval in both houses of the
Republican-controlled Congress, passing by a vote of 85–14
in the Senate[22]
and a vote of 342–67 in the House.[23]
Democratic Senators voted for the bill 32 to 14 (with Pryor of
Arkansas absent), and Democratic Representatives voted for it
118 to 65, with 15 not participating. All Republicans in both
houses voted for the bill with the sole exception of the one
openly gay Republican congressman, Rep.
Steve Gunderson of Wisconsin.[24]
The sole independent in the House,
Bernie Sanders of Vermont, voted against the bill. On the
day it passed the House, a White House spokesman called the
legislation "gay baiting".[25]
Though he personally did not support gay marriage, Clinton
also was against passing the Defense of Marriage Act, feeling it
was an insult to many of his gay friends.[26]
However, after Congress had passed the bill with enough votes to
override a presidential veto,[26]
Clinton decided to sign the bill into law in order to avoid the
type of political damage he encountered earlier in his
presidency when he underestimated the public's opposition to his
attempt to allow gays and lesbians to serve openly in the US
military.[26]
Clinton, who was traveling when Congress acted, signed it into
law promptly upon returning to Washington, D.C., on September
21, 1996.[20]
The White House released a statement in which Clinton said "that
the enactment of this legislation should not, despite the fierce
and at times divisive rhetoric surrounding it, be understood to
provide an excuse for discrimination, violence or intimidation
against any person on the basis of sexual orientation".[20]
In 2013,
Mike McCurry, the White House press secretary at the time,
recalled that "His (Clinton's) posture was quite frankly driven
by the political realities of an election year in 1996."[26]
Clinton did not mention the issue in his
2004 autobiography.[27]
Over time, Clinton's personal views on same-sex marriage
shifted. In July 2009, he said, "I personally support people
doing what they want to do. I think it's wrong for someone to
stop someone else from doing that [gay marriage]."[28]
Clinton added that he personally supported same-sex marriage but
did not believe it is a "federal question", stating, "I think
all these states that do it should do it."[29]
On March 7, 2013, in an op-ed he wrote for the Washington Post,
Clinton urged the Supreme Court, which would shortly hear
arguments on
United States v. Windsor, to overturn DOMA.[30][31]
Impact
The
General Accounting Office issued a report in 1997
identifying "1,049 federal statutory provisions classified to
the United States Code in which benefits, rights, and privileges
are contingent on marital status or in which marital status is a
factor".[32]
In updating its report in 2004, the GAO found that this number
had risen to 1,138 as of December 31, 2003.[33]
With respect to Social Security, housing, and food stamps, the
GAO found that "recognition of the marital relationship is
integral to the design of the program[s]." The other major
categories the GAO identified were veteran's benefits, including
pensions and survivor benefits; taxes on income, estates, gifts,
and property sales; and benefits due federal employees, both
civilian and military. Among many specifics, it noted the rights
of the widow or widower of the creator of a copyrighted work and
certain financial disclosure requirements that include the
spouses of members of Congress and certain officers of the
federal government. Education loan programs and agriculture
price support and loan programs also implicate spouses.
Financial aid to "family farms" is restricted to those in which
"a majority interest is held by individuals related by marriage
or blood."[32]
Because the federal
Employee Retirement Income Security Act (ERISA) controls
most employee benefits provided by private employers, DOMA
removes some tax breaks for employers and employees in the
private sector when it comes to health care, pension, and
disability benefits to same-sex spouses on an equal footing with
opposite-sex spouses. ERISA does not affect employees of state
and local government or churches, nor does it extend to such
benefits as employee leave and vacation.[34]
Under DOMA, persons in same-sex marriages are not considered
married for immigration purposes. U.S. citizens and permanent
residents in same-sex marriages cannot petition for their
spouses, nor can they be accompanied by their spouses into the
U.S. on the basis of a family or employment-based visa. A
non-citizen in such a marriage cannot use it as the basis for
obtaining a waiver or relief from removal from the U.S.[35]
Following the end of the U.S. military's ban on service by
open gays and lesbians, "Don't
ask, don't tell," in September 2011, Admiral
Mike Mullen,
Chairman of the Joint Chiefs of Staff, noted that DOMA
limited the military's ability to extend the same benefits to
military personnel in same-sex marriages as their peers in
opposite-sex marriages received, notably health benefits.[36]
Same-sex spouses of military personnel are denied the same
access to military bases, legal counseling, and housing
allowances provided to different-sex spouses.[37]
Political
debate
The 2000 Republican Party platform endorsed DOMA in general
terms and indicated concern about
judicial activism: "We support the traditional definition of
'marriage' as the legal union of one man and one woman, and we
believe that federal judges and bureaucrats should not force
states to recognize other living arrangements as marriages.[38]
The Democratic Party platform that year did not mention DOMA or
marriage in this context.[39]
Bush
administration
In 2004, President
George W. Bush endorsed a proposed constitutional amendment
to restrict marriage to opposite-sex couples because he thought
DOMA vulnerable: "After more than two centuries of American
jurisprudence and millennia of human experience, a few judges
and local authorities are presuming to change the most
fundamental institution of civilization. Their actions have
created confusion on an issue that requires clarity."[40]
In January 2005, he said he would not lobby on its behalf, since
too many U.S. senators thought DOMA would survive a
constitutional challenge.[41]
Obama
administration
President
Barack Obama's 2008
political platform endorsed the repeal of DOMA.[42][43]
On June 12, 2009, the
Justice Department issued a brief defending the
constitutionality of DOMA in the case of
Smelt v. United States, continuing its longstanding
practice of defending all federal laws challenged in court.[44]
On June 15, 2009,
Human Rights Campaign President
Joe Solmonese wrote an open letter to Obama that asked for
actions to balance the DOJ's courtroom position: "We call on you
to put your principles into action and send legislation
repealing DOMA to Congress."[45]
A representative of
Lambda Legal, an LGBT impact litigation and advocacy
organization, noted that the Obama administration's legal
arguments omitted the Bush administration's assertion that
households headed by opposite-sex spouses were better at raising
children than those headed by same-sex spouses.[44]
On February 23, 2011,
Attorney General
Eric Holder released a statement regarding lawsuits
challenging DOMA Section 3. He wrote:[46]
After careful consideration, including a review of my
recommendation, the President has concluded that given a
number of factors, including a documented history of
discrimination, classifications based on sexual orientation
should be subject to a more heightened standard of scrutiny.
The President has also concluded that Section 3 of DOMA, as
applied to legally married same-sex couples, fails to meet
that standard and is therefore unconstitutional. Given that
conclusion, the President has instructed the Department not
to defend the statute in such cases.
He also announced the administration intended to enforce the
law, as distinct from defending it in court, "unless and until
Congress repeals Section 3 or the judicial branch renders a
definitive verdict against the law's constitutionality."[46]
In a separate letter to
Speaker of the House
John Boehner, Holder noted that Congress still had the
ability to participate in these lawsuits in lieu of the Justice
Department.[47]
On February 24, the Department of Justice notified the
First Circuit Court of Appeals that it would "cease to
defend"
Gill and
Massachusetts as well.[48]
On July 1, 2011, the DOJ, with a filing in Golinski,
intervened for the first time on behalf of a plaintiff seeking
to have DOMA Section 3 ruled unconstitutional, arguing that laws
that use sexual orientation as a classification need to pass the
court's
intermediate scrutiny standard of review.[49]
The DOJ made similar arguments in a filing in Gill on
July 7.[50]
In June 2012, filing an
amicus brief in Golinski, two former Republican
Attorneys General,
Edwin Meese and
John Ashcroft, called the DOJ's decision not to defend DOMA
Section 3 "an unprecedented and ill-advised departure from over
two centuries of Executive Branch practice" and "an extreme and
unprecedented deviation from the historical norm".[51]
Congressional intervention
On March 4, 2011, Boehner announced plans to convene the
Bipartisan Legal Advisory Group (BLAG) to consider whether
the House of Representatives should defend DOMA Section 3 in
place of the Department of Justice,[52][53]
and on March 9 the committee voted 3–2 to do so.[54]
On April 18, 2011, House leaders announced they had selected
former United States Solicitor General
Paul Clement to represent BLAG,[55]
and Clement, without opposition from other parties to the case,
filed a motion to be allowed to intervene in the suit "for the
limited purpose of defending the constitutionality of Section
III" of DOMA.[56][57]
On April 25, 2011,
King & Spalding, the
law firm through which Clement was handling the case,
announced it was dropping the case. On the same day, Clement
resigned from King & Spalding in protest and joined
Bancroft PLLC, which took on the case.[58]
The House's initial contract with Clement capped legal fees at
$500,000,[59]
but on September 30 a revised contract raised the cap to $1.5
million.[60]
A spokesman for Boehner explained that BLAG would not appeal in
all cases, citing bankruptcy cases that are "unlikely to provide
the path to the Supreme Court....[E]ffectively defending [DOMA]
does not require the House to intervene in every case,
especially when doing so would be prohibitively expensive."[61]
Repeal
proposals
On September 15, 2009, three Democratic members of Congress,
Jerrold Nadler of New York,
Tammy Baldwin of
Wisconsin, and
Jared Polis of
Colorado, introduced legislation to repeal DOMA called the
Respect for Marriage Act. The bill had 91 original
co-sponsors in the House of Representatives[62][63]
and was supported by Clinton, Barr, and several legislators who
voted for DOMA.[64]
Congressman
Barney Frank and
John Berry, head of the Office of Personnel Management, did
not support that effort, stating that "the backbone is not
there" in Congress. Frank and Berry suggested DOMA could be
overturned more quickly through lawsuits such as
Gill v. Office of Personnel Management filed by
Gay & Lesbian Advocates & Defenders (GLAD).[65][66]
Following Holder's announcement that the Obama Administration
would no longer defend DOMA Section 3 in court, on March 16,
2011, Senator
Dianne Feinstein introduced the Respect for Marriage Act in
the Senate again[67]
and Nadler introduced it in the House.[68]
The Senate Judiciary Committee voted 10–8 in favor of advancing
the bill to the Senate floor, but observers believed it would
not gain the 60 votes needed to end debate and bring it to a
vote.[69]
Challenges in federal court
Numerous plaintiffs have challenged DOMA. Cases from the
middle of the first decade of the 21st century upheld the law:
- In re Kandu, a same-sex couple in the state of
Washington, who had married in Canada, attempted to file a
joint bankruptcy petition, but were not allowed to do so.[70][71]
- Wilson v. Ake, an unsuccessful attempt by a
Florida same-sex couple, married in Massachusetts, to have
their marriage license accepted in Florida.[n
3]
More recent cases have focused on Section 3's definition of
marriage. The courts, using different standards, have all found
Section 3 unconstitutional. Requests for the Supreme Court to
hear appeals have been filed in five cases, listed below (with
Supreme Court docket numbers):
Golinski v. Office of Personnel Management
Golinski v. Office of Personnel Management is a
challenge to Section 3 of DOMA in federal court based on a
judicial employee's attempt to receive spousal health benefits
for her wife. In 2008, Karen Golinski, a 19-year employee of the
Ninth Circuit Court of Appeals, applied for health benefits for
her wife. When the application was denied, she filed a complaint
under the Ninth Circuit's Employment Dispute Resolution Plan.
Chief Judge
Alex Kozinski, in his administrative capacity, ruled in 2009
that she was entitled to spousal health benefits,[73]
but the
Office of Personnel Management (OPM) announced that it would
not comply with the ruling.
On March 17, 2011, U.S. District Judge
Jeffrey White dismissed the suit on procedural grounds but
invited Golinski to amend her suit to argue the
unconstitutionality of DOMA Section 3,[74]
which she did on April 14.[75]
Following the Attorney General's decision to no longer defend
DOMA,[46]
the
Bipartisan Legal Advisory Group (BLAG), an arm of the House
of Representatives, took up the defense. Former
United States Solicitor General
Paul Clement filed, on BLAG's behalf, a motion to dismiss
raising arguments previously avoided by the Department of
Justice: that DOMA's definition of marriage is valid "because
only a man and a woman can beget a child together, and because
historical experience has shown that a family consisting of a
married father and mother is an effective social structure for
raising children."[76][77]
On July 1, 2011, the DOJ filed a brief in support of Golinski's
suit, in which it detailed for the first time its case for
heightened scrutiny based on "a significant history of
purposeful discrimination against gay and lesbian people, by
governmental as well as private entities" and its arguments that
DOMA Section 3 fails to meet that standard.[49][78]
On February 22, 2012, White ruled for Golinski, finding DOMA
"violates her right to equal protection of the law under the
Fifth Amendment to the United States Constitution." He wrote
that Section 3 of DOMA could not pass the "heightened
scrutiny" or the "rational
basis" test. He wrote,[79]
The Court finds that neither Congress' claimed
legislative justifications nor any of the proposed reasons
proffered by BLAG constitute bases rationally related to any
of the alleged governmental interests. Further, after
concluding that neither the law nor the record can sustain
any of the interests suggested, the Court, having tried on
its own, cannot conceive of any additional interests that
DOMA might further.
The case is currently on appeal to the Ninth Circuit, but on
July 3, 2012, the DOJ asked the Supreme Court to review the case
before the Ninth Circuit decides it so it can be heard together
with two other cases in which DOMA Section 3 was held
unconstitutional,
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human
Services.[80]
Gill and Massachusetts
On March 3, 2009,
GLAD filed a federal court challenge,
Gill v. Office of Personnel Management, based on the
Equal Protection Clause and the federal government's consistent
deference to each state's definition of marriage prior to the
enactment of DOMA. The case questioned only the DOMA provision
that the federal government defines marriage as the union of a
man and a woman.[81][82]
On May 6, 2010, Judge
Joseph L. Tauro heard arguments in the
U.S. District Court in Boston.[83]
On July 8, 2009, Massachusetts Attorney General
Martha Coakley filed a suit,
Massachusetts v. United States Department of Health and Human
Services, challenging the constitutionality of DOMA. The
suit claims that Congress "overstepped its authority, undermined
states' efforts to recognize marriages between same-sex couples,
and codified an animus towards gay and lesbian people."[84]
Tauro, the judge also handling Gill, heard arguments on
May 26, 2010.[85]
On July 8, 2010, Tauro issued his rulings in both Gill
and Massachusetts, granting
summary judgment for the plaintiffs in both cases.[86][87]
He found in Gill that Section 3 of the Defense of
Marriage Act violates the equal protection of the laws
guaranteed by the
Due Process Clause of the
Fifth Amendment to the U.S. Constitution. In
Massachusetts he held that the same section of DOMA violates
the
Tenth Amendment and falls outside Congress' authority under
the
Spending Clause of the Constitution.[88][89]
Those decisions were stayed after the DOJ filed an appeal on
October 12, 2010.[90]
On November 3, 2011, 133 House Democrats filed an amicus
brief in support of the plaintiffs in Gill and
Massachusetts, asserting their belief that Section 3 of DOMA
was unconstitutional.[91]
Included among the members of Congress signing the brief were 14
members who had voted for the bill in 1996.[91]
Seventy major employers also filed an amicus brief supporting
the plaintiffs.[92]
A three-judge panel heard arguments in the case on April 4,
2012, during which the DOJ for the first time took the position
that it could not defend Section 3 of DOMA under any level of
scrutiny.[93]
On May 31, 2012, the panel unanimously affirmed Tauro's ruling,
finding Section 3 of DOMA unconstitutional.[94][95]
On June 29, BLAG filed a petition for
certiorari with the Supreme Court.[96]
The DOJ did so on July 3, while asking the Supreme Court to
review Golinski as well.[80]
The Commonwealth of Massachusetts filed a response to both
petitions adding the Spending Clause and Tenth Amendment issues
as questions presented.[n
4]
United States v. Windsor
On November 9, 2010, the
American Civil Liberties Union and the law firm
Paul, Weiss, Rifkind, Wharton & Garrison filed
United States v. Windsor in New York on behalf of a
surviving same-sex spouse whose inheritance from her deceased
spouse had been subject to federal taxation as if they were
unmarried.[97][98]
New York is part of the
Second Circuit, where no precedent exists for the standard
of review to be followed in sexual-orientation discrimination
cases.
New York Attorney General
Eric Schneiderman filed a brief supporting Windsor's claim
on July 26, 2011.[99]
On June 6, 2012, Judge
Barbara Jones ruled that based on rational basis review,
Section 3 of DOMA is unconstitutional and ordered the requested
tax refund be paid to Windsor. The plaintiff commented, "It's
thrilling to have a court finally recognize how unfair it is for
the government to have treated us as though we were strangers."[100]
Windsor's attorneys filed a petition of certiorari with the
Supreme Court on July 16, asking for the case to be considered
without waiting for the Second Circuit's review.[101]
On October 18, the Second Circuit Court of Appeals upheld the
lower court's ruling that Section 3 of DOMA is unconstitutional.[102][103]
It was the first federal court of appeals decision to find that
a law targeting gays and lesbians is subject to
intermediate scrutiny.[104]
On December 7, the Supreme Court agreed to hear the case.
Oral arguments were heard on March 27, 2013.[105]
In a 5–4 decision on June 26, the Court ruled Section 3 of DOMA
to be unconstitutional, declaring it "a deprivation of the
liberty of the person protected by the Fifth Amendment."[1]:25
Pedersen v. Office of Personnel Management
Pedersen v. Office of Personnel Management is a case
filed by GLAD in Connecticut on behalf of same-sex couples in
Connecticut, Vermont, and New Hampshire, in which GLAD repeats
the arguments it made in Gill.
On July 31, 2012, Judge
Vanessa Bryant ruled that "having considered the purported
rational bases proffered by both BLAG and Congress and concluded
that such objectives bear no rational relationship to Section 3
of DOMA as a legislative scheme, the Court finds that that no
conceivable rational basis exists for the provision. The
provision therefore violates the equal protection principles
incorporated in the Fifth Amendment to the United States
Constitution."[106]
She held that "laws that classify people based on sexual
orientation should be subject to heightened scrutiny by courts"
but determined Section 3 of DOMA "fails to pass constitutional
muster under even the most deferential level of judicial
scrutiny."[107][108]
The case is currently on appeal to the Second Circuit, and on
August 21, 2012, Pedersen asked the Supreme Court to review the
case before the Second Circuit decides it so it can be heard
together with
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human
Services.[109]
Other cases
Other cases challenging DOMA include:[110]
- Smelt v. Orange County and Smelt v. United
States, In February 2004, Arthur Smelt and Christopher
Hammer sued
Orange County, California, in federal court for refusing
to issue them a marriage license. The district court ruled
that the couple did not have
standing to challenge Section 2 of DOMA and rejected
their challenge to the constitutionality of Section 3. On
May 5, 2006, the United States Court of Appeals for the
Ninth Circuit dismissed the suit,[111]
and on October 10 the
United States Supreme Court refused to consider the
couple's appeal.[112]
On March 9, 2009, the same couple, having legally married in
California, filed
Smelt v. United States, challenging the
constitutionality of DOMA and California's
Proposition 8.[113]
District Judge
David O. Carter dismissed the case on August 24, because
the couple had not applied for and been denied any federal
benefit and therefore lacked "an injury in fact."[114]
- Bishop v. United States (formerly Bishop v.
Oklahoma), two lesbian couples in Oklahoma, one of which
couples sought a marriage license and the other to have the
state recognize either their Canadian marriage or their
Vermont civil union.[115][116]
- Dragovich v. Department of the Treasury, No.
10-1564 (N.D. Cal.), a class action in which California
same-sex couples seek equal access to California's long-term
care insurance program for public employees and their
families. U.S. District Court Judge
Claudia Wilken on May 24, 2012, found Section 3 of DOMA
and certain IRS regulations violated the plaintiffs' equal
protection rights.[117]
Briefs in an appeal to the Ninth Circuit are due October 29.[118]
- Hara v. Office of Personnel Management, No.
09-3134 (Fed. Cir.) Hara is one of the plaintiffs in Gill.
- Torres-Barragan v. Holder, No. 10-55768 (9th
Cir.) An immigration-related DOMA challenge in which the
district court rejected the constitutional challenges. No
longer being appealed.[119]
- Cozen O'Connor, P.C. v. Tobits and Farley, No.
11-00045-CDJ, Pennsylvania, in which two parties dispute who
inherits the proceeds of a law firm's profit-sharing plan
under ERISA and DOMA. The DOJ has filed a brief in the case
arguing the unconstitutionality of DOMA.[120][121]
- On April 5, 2012, Chief Judge
James Ware of the
U.S. District Court for the Northern District of California
ordered the federal court clerk to reimburse Christopher
Nathan, a court employee, for the costs of health insurance
coverage for his same-sex spouse comparable to that denied
him by Section 3 of DOMA.[122]
On November 21, 2012, the Ninth Circuit Judicial Conference
affirmed Ware's decision and ordered the court to determine
the amount due Nathan and pay him within 10 days.[123]
Military and veterans cases
On October 13, 2011, Carmen Cardona, a U.S. Navy veteran,
filed a lawsuit in the
United States Court of Appeals for Veterans Claims seeking
disability benefits for her wife that the Veterans
Administration and the Board of Veterans Appeals had denied.[124]
Cardona is represented by the Yale Law School Legal Services
Clinic.[125]
At the request of BLAG, which is defending the government's
action, and over Cardona's objections, the court postponed oral
argument in
Cardona v. Shinseki pending the Supreme Court's
disposition of writs of certiorari in other DOMA cases.[126]
On October 27, 2011, the
Servicemembers Legal Defense Network (SLDN) brought suit in
federal court on behalf of several military servicemembers and
veterans in same-sex marriages. In a November 21 filing in the
case of McLaughlin v. Panetta, they wrote, "Any claim
that DOMA, as applied to military spousal benefits, survives
rational basis review is strained because paying unequal
benefits to service members runs directly counter to the
military values of uniformity, fairness and unit cohesion." The
benefits at issue include medical and dental benefits, basic
housing and transportation allowances, family separation
benefits, visitation rights in military hospitals, and survivor
benefit plans.[127]
The case was assigned to Judge
Richard G. Stearns. One of the plaintiffs in the case,
lesbian Charlie Morgan, who was undergoing chemotherapy, met
with an assistant to Boehner on February 9, 2012, to ask him to
consider not defending DOMA.[128]
The case is on hold at the request of both sides in anticipation
of the outcome of two other First Circuit cases on appeal,
Gill v. Office of Personnel Management and
Massachusetts v. United States Department of Health and Human
Services.[129]
On February 17, the DOJ announced it could not defend the
constitutionality of the statutes challenged in the case.[130]
In May 2012, the parties filed briefs arguing whether BLAG has a
right to intervene.[131]
Tracey Cooper-Harris, an Army veteran from California, sued
the
Veterans Administration and the DOJ in federal court on
February 1, 2012, asking for her wife to receive the benefits
normally granted to spouses of disabled veterans.[132]
BLAG sought a delay in Cooper-Harris v. United States
pending the resolution of Golinski, which the attorneys
for Cooper-Harris, the
Southern Poverty Law Center, opposed. The court denied
BLAG's motion on August 4.[133]
Bankruptcy
court
In May 2011, DOMA-based challenges by the Department of
Justice to joint petitions for bankruptcy by married same-sex
couples were denied in two cases, one in the Southern District
of New York on May 4 and one in the Eastern District of
California on May 31. Both rulings stressed practical
considerations and avoided ruling on DOMA.[134][135]
On June 13, 2011, 20 of the 25 judges of the U.S. Bankruptcy
Court for the Central District of California signed an opinion
in the case in re Balas and Morales that found that a
same-sex married couple filing for bankruptcy "have made their
case persuasively that DOMA deprives them of the equal
protection of the law to which they are entitled." The decision
found DOMA Section 3 unconstitutional and dismissed BLAG's
objections to the joint filing:[136][137]
Although individual members of Congress have every right
to express their views and the views of their constituents
with respect to their religious beliefs and principles and
their personal standards of who may marry whom, this court
cannot conclude that Congress is entitled to solemnize such
views in the laws of this nation in disregard of the views,
legal status and living arrangements of a significant
segment of our citizenry that includes the Debtors in this
case. To do so violates the Debtors' right to equal
protection of those laws embodied in the due process clause
of the Fifth Amendment. This court cannot conclude from the
evidence or the record in this case that any valid
governmental interest is advanced by DOMA as applied to the
Debtors.
A spokesman for House Speaker Boehner said BLAG would not
appeal the ruling,[138]
On July 7, 2011, the DOJ announced that after consultation with
BLAG it would no longer raise objections to "bankruptcy
petitions filed jointly by same-sex couples who are married
under state law".[139]
Immigration
cases
Bi-national same-sex couples are kept from legally living in
the United States by DOMA's Section 3, which prevents one spouse
from sponsoring the other for a
green card.[140]
Following some uncertainty after the Obama Administration
determined Section 3 to be unconstitutional, the
United States Citizenship and Immigration Services (USCIS)
reaffirmed its policy of denying such applications.[141]
With respect to obtaining a visitor's visa, Bureau rules treat
bi-national same-sex spouses the same as bi-national
opposite-sex unmarried partners under the classification
"cohabiting partners".[142]
Tim Coco and Genesio J. Oliveira, a same-sex couple married
in Massachusetts in 2005, successfully challenged this policy
and developed a model since followed by other immigration
activists.[143]
The U.S. refused to recognize their marriage, and in 2007
Oliveira, a Brazilian national, accepted "voluntary departure"
and returned to Brazil. They conducted a national press campaign[144]
A
Boston Globe editorial commented, "Great strides toward
equality for gays have been made in this country, but the woeful
fate of Tim Coco and Genesio Oliveira shows that thousands of
same-sex couples, even in Massachusetts, still aren't really
full citizens."[145]
The editorial gained the attention of Senator
John F. Kerry, who first lobbied
Attorney General
Eric Holder without success.[146]
He then gained the support of
Homeland Security Secretary
Janet Napolitano, who granted Oliveira
humanitarian parole, enabling the couple to reunite in the
U.S. in June 2010.[147]
Humanitarian parole is granted on a case-by-case basis at the
Secretary's discretion.[148]
On September 28, 2011, in Lui v. Holder, U.S. District
Court Judge
Stephen V. Wilson rejected a challenge to DOMA, citing
Adams v. Howerton (1982).[149]
The plaintiffs in that case had unsuccessfully challenged the
denial of immediate relative status to the same-sex spouse of an
American citizen.[150][151]
Early in 2012, two bi-national same-sex couples were granted
"deferred action" status, suspending deportation proceedings
against the non-U.S. citizen for a year.[152][153]
A similar Texas couple had a deportation case dismissed in March
2012, leaving the non-citizen spouse unable to work legally in
the United States but no longer subject to the threat of
deportation.[154]
On January 5, 2012, the
U.S. District Court for the Northern District of Illinois in
Chicago decided the suit of a same-sex binational couple. Demos
Revelis and Marcel Maas, married in Iowa in 2010, sought to
prevent the USCIS from applying Section 3 of DOMA to Revelis's
application for a permanent residence visa for Maas and, in the
court's words, "that their petition be reviewed and decided on
the same basis as other married couples."[155]
Judge
Harry D. Leinenweber, a Reagan appointee, denied the
government's motion to dismiss. BLAG has argued for the suit to
be dismissed.[156]
In July the court stayed proceedings until mid-October because
the USCIS is considering denying the plaintiffs' request on
grounds unrelated to DOMA.[157]
On April 2, 2012, five bi-national same-sex couples
represented by
Immigration Equality and Paul, Weiss filed a lawsuit,
Blesch v. Holder, in the
District Court for the Eastern District of New York,
claiming that Section 3 of DOMA violates their equal protection
rights by denying the U.S. citizen in the relationship the same
rights in the green card application process granted a U.S.
citizen who is in a relationship of partners of the opposite
sex.[156]
On July 25, Chief Judge
Carol Bagley Amon stayed the case pending the resolution of
Windsor by the Second Circuit.[158]
Immigration rights advocate Lavi Soloway reported on June 19,
2012, that the Board of Immigration Appeals (BIA) had in four
cases responded to green card denials on the part of the U.S.
Citizenship and Immigration Services (USCIS) by asking the USCIS
to document the marital status of the same-sex couples and
determine whether the foreign national would qualify for a green
card in the absence of DOMA Section 3. He said the BIA is
"essentially setting the stage for being able to approve the
petitions in a post-DOMA universe."[159]
On April 19, 2013, U.S. District Judge
Consuelo Marshall ordered that a suit brought in July 2012
by Jane DeLeon, a Philippine citizen, and her spouse, Irma
Rodriguez, a U.S. citizen, could proceed as a class action. The
plaintiffs, represented by the Center for Human Rights and
Constitutional Law, contend that DeLeon has been denied a
residency waiver because of DOMA Section 3.[160][161]
On June 28, 2013,
United States Citizenship and Immigration Services notified
U.S. citizen Julian Marsh that it had approved his application
for a green card for his Bulgarian husband Traian Popov. Both
are residents of Florida.[162]
Tribunals
In 2009,
United States Court of Appeals for the Ninth Circuit Judge
Stephen Reinhardt declared DOMA unconstitutional in in re
Levenson, an employment dispute resolution tribunal case,
where the federal government refused to grant spousal benefits
to Tony Sears, the husband of deputy federal public defender
Brad Levenson.[163][164]
As an employee of the federal judiciary, Levenson is prohibited
from suing his employer in federal court. Rather, employment
disputes are handled at employment dispute resolution tribunals
in which a federal judge hears the dispute in their capacity as
a dispute resolution official.
Full faith and credit cases
In August 2007, the
Tenth Circuit Court of Appeals in the case of Finstuen v.
Crutcher ordered Oklahoma to issue a revised birth
certificate showing both adoptive parents to a child born in
Oklahoma who had been adopted by a same-sex couple married
elsewhere.[165]
By contrast, in 2011 Louisiana in Adar v. Smith
successfully defended in federal court its refusal to amend the
birth certificate of a child born in Louisiana and adopted in
New York by a same-sex married couple who sought to have a new
certificate issued with their names as parents as is standard
practice for Louisiana-born children adopted by opposite-sex
married couples.[166]
The Supreme Court refused to hear the case on appeal.[167]
On October 2, 2009, a Texas judge granted a divorce to two
men married in Massachusetts. On August 31, 2010, the
Fifth Court of Appeals in
Dallas reversed the lower court's ruling.[168][169]
On January 7, 2011, the Third Court of Appeals in
Austin allowed a divorce granted by a lower court to a
lesbian couple married in Massachusetts to stand.[170]
Both cases await action by the
Texas Supreme Court.[171]
DOMA and state legislation
A majority of the states, including some that have benefits
for same-sex relationships, have restricted recognition of
marriage to unions of one man and one woman either by statute or
an amendment to their state constitution.[n
5] Most do not recognize same-sex unions from other
jurisdictions, including other jurisdictions of the United
States. States that permit same-sex marriages recognize same-sex
marriages from other jurisdictions.
Same-sex marriage has been legalized in
California,[173]
Connecticut,[174]
Delaware,
Iowa,
Maine,[175]
Maryland,[176]
Massachusetts,
Minnesota,
New Hampshire,
New York,
Rhode Island,
Vermont,
Washington, the
District of Columbia, and five
Native American tribes.[177]
New Mexico and Rhode Island recognize same-sex marriages from
other jurisdictions[178][179]
Other states that recognize same-sex marriages as civil unions
or domestic partnerships include Colorado,[180]
California,[181]
Hawaii, Illinois,[182]
Nevada,
New Jersey, Oregon and Wisconsin. Massachusetts recognizes
civil unions and domestic partnerships established elsewhere as
the legal equivalent of marriage.[183]
See also
Notes
-
^ For a
review of the play see
Barnes, Clive (December 10, 1971).
"'Nightride'–No Apologies and No Regrets". New
York Times.
Retrieved February 7, 2012.
-
^ For the
theological background beginning in 1967, see
Fiske, Edward B. (December
3, 1967).
"Views on Homosexuals". New York Times.
Retrieved February 7, 2012.
-
^ The court
held that in enacting Section 2 of DOMA "Congress’
actions are an appropriate exercise of its power to
regulate conflicts between the laws of two different
States" under the Full Faith and Credit Clause.[72]
-
^ The
Commonwealth also filed its own petition in
Massachusetts in case the court found the response
was not the proper way to raise those issues.
-
^ Following
the November 2012 elections, 30 states had
constitutional amendments defining marriage as the union
of a man and a woman, and another 8 states had statutory
bans. Both New Jersey and New Mexico have no
constitutional and/or statute bans on same-sex
marriages.[172]
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^
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^
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