Same-Sex Marriage

Part One of a Two-Part Article

On Aug. 10, the American Bar Association's governing body voted to adopt a policy calling for the elimination of all state, territorial and tribal laws restricting civil marriage for same-sex partners. The recommendation that the ABA throw its weight behind the initiative was proposed by a number of entities, including both the New York State and New York City Bar Associations. Outgoing ABA president Carolyn Lamm and incoming president Stephen Zack supported the measure. Despite the fact that in previous years the ABA had declined to support such a resolution, the ABA House of Delegates this year voted “overwhelmingly” in favor of the resolution at its annual meeting in San Francisco, said Stephen P. Younger, president of the California state bar and a partner at Patterson Belknap Webb & Tyler.

This is just one of the many new developments in the evolution of the gay marriage debate.

Perry v. Schwarzeneger

Of course, on everyone's radar is the well-publicized Aug. 4 holding in Perry v. Schwarzeneger, in which U.S. District Judge Vaughn Walker found unconstitutional California's Proposition 8, initiative that made same-sex marriage illegal in that state. Although he employed the “strict scrutiny” test in deciding that Proposition 8 was fatally flawed, Judge Walker found that the measure, endorsed by a majority of California's voters in 2008, would not even pass the less stringent “rational basis” test. No matter how he looked at it, Judge Walker could come to just one conclusion: The prohibition against same-sex marriage contained in Proposition 8 infringes on the 14th Amendment's Due Process and Equal Protection guarantees to same-sex couples wishing to marry.

Additionally, equal protection arguments for recognition of same-sex marriage similar to those advanced in Perry have been both successful (see, e.g., The Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass., 7/8/10)) and unsuccessful (see, e.g., In re Marriage of J.B., — S.W.3d —-, 2010 WL 3399074 (Tex.App.-Dallas, 8/31/10)) in recently decided lawsuits.

DOMA Held Unconstitutional

Of special note is a case decided in Massachusetts in which the plaintiffs took a different tack, and won. The reasoning behind that July 8 decision deserves some scrutiny.

U.S. District Court Judge Joseph L. Tauro, in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 7/8/10), declared the federal Defense of Marriage Act (DOMA) (28 U.S.C. ' 1738C) unconstitutional. While the case dealt with the application of DOMA to Massachusetts law, the principles discussed in it could apply in any state that chooses to recognize the validity of its citizens' same-sex marriages, whether entered into in their own or in neighboring states. In it, DOMA was found to infringe on the Commonwealth of Massachusetts's prerogative to define and regulate the institution of marriage within its own borders.

The Law in Massachusetts

In 2003, Massachusetts' Supreme Judicial Court declared in Gooding v. Department of Public Health that the Commonwealth's denial of same-sex couples' right to marry was unconstitutional under it's own constitution. Following that ruling, in May of 2004, the Commonwealth began issuing marriage licenses to gay couples. This prompted a rush to the altar for many Massachusetts couples that had waited for years for the right to marry. People from other states, including New York, also obtained marriage licenses and were married in Massachusetts, the first state in the union to authorize such unions.

To prevent out-of-state residents from marrying in Massachusetts, the Commonwealth soon invoked a long-forgotten statute, originally enacted in 1913 to keep mixed-race couples from marrying there if their own home states would not have permitted such marriages. In 2008, that 1913 law was repealed, again opening up the possibility of legal marriage in Massachusetts for couples from states that do not issue marriage licenses to same-sex couples, like New York and New Jersey.

DOMA

DOMA became law in 1996 during President Bill Clinton's administration. The federal law defines marriage as a legal union between one man and one woman, and declares that the federal government ' and any state that so chooses ' may refuse to honor same-sex marriages, even if entered into in a state or country that recognizes the legality of such unions.

Because of DOMA, the federal government was left free to declare that it would not recognize same-sex marriages, no matter where entered into. Such unions are now legal not only in Massachusetts, but also in Connecticut, Iowa, New Hampshire, Vermont and Washington, DC. New York, Rhode Island and Maryland officially recognize same-sex marriages entered into outside their states, though such unions are not performed within those states.

The implications of the federal government's failure to accept as valid the marriages of gay partners are significant. Because same-sex couples legally married within the United States and elsewhere are not, in fact, legally married in the eyes of this country, they are not entitled to demand the financial and legal benefits available from the federal government to opposite-sex couples. According to estimates from the General Accounting Office, as of Dec. 31, 2003, there were at least 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. These statutory provisions pertain to a variety of subjects, including, but not limited to, Social Security, taxes, immigration and health care.

Conclusion

In next month's newsletter, we will discuss the reasons why the court in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services determined that DOMA violates the privileges reserved to the Commonwealth of Massachusetts by the 10th Amendment to the Constitution.

Part One of a Two-Part Article

On Aug. 10, the American Bar Association's governing body voted to adopt a policy calling for the elimination of all state, territorial and tribal laws restricting civil marriage for same-sex partners. The recommendation that the ABA throw its weight behind the initiative was proposed by a number of entities, including both the New York State and New York City Bar Associations. Outgoing ABA president Carolyn Lamm and incoming president Stephen Zack supported the measure. Despite the fact that in previous years the ABA had declined to support such a resolution, the ABA House of Delegates this year voted “overwhelmingly” in favor of the resolution at its annual meeting in San Francisco, said Stephen P. Younger, president of the California state bar and a partner at Patterson Belknap Webb & Tyler.

This is just one of the many new developments in the evolution of the gay marriage debate.

Perry v. Schwarzeneger

Of course, on everyone's radar is the well-publicized Aug. 4 holding in Perry v. Schwarzeneger, in which U.S. District Judge Vaughn Walker found unconstitutional California's Proposition 8, initiative that made same-sex marriage illegal in that state. Although he employed the “strict scrutiny” test in deciding that Proposition 8 was fatally flawed, Judge Walker found that the measure, endorsed by a majority of California's voters in 2008, would not even pass the less stringent “rational basis” test. No matter how he looked at it, Judge Walker could come to just one conclusion: The prohibition against same-sex marriage contained in Proposition 8 infringes on the 14th Amendment's Due Process and Equal Protection guarantees to same-sex couples wishing to marry.

Additionally, equal protection arguments for recognition of same-sex marriage similar to those advanced in Perry have been both successful ( see, e.g., The Gill v. Office of Personnel Management , 699 F.Supp.2d 374 (D.Mass., 7/8/10)) and unsuccessful ( see, e.g., In re Marriage of J.B. , — S.W.3d —-, 2010 WL 3399074 (Tex.App.-Dallas, 8/31/10)) in recently decided lawsuits.

DOMA Held Unconstitutional

Of special note is a case decided in Massachusetts in which the plaintiffs took a different tack, and won. The reasoning behind that July 8 decision deserves some scrutiny.

U.S. District Court Judge Joseph L. Tauro, in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services , 698 F.Supp.2d 234 (D.Mass. 7/8/10), declared the federal Defense of Marriage Act (DOMA) (28 U.S.C. ' 1738C) unconstitutional. While the case dealt with the application of DOMA to Massachusetts law, the principles discussed in it could apply in any state that chooses to recognize the validity of its citizens' same-sex marriages, whether entered into in their own or in neighboring states. In it, DOMA was found to infringe on the Commonwealth of Massachusetts's prerogative to define and regulate the institution of marriage within its own borders.

The Law in Massachusetts

In 2003, Massachusetts' Supreme Judicial Court declared in Gooding v. Department of Public Health that the Commonwealth's denial of same-sex couples' right to marry was unconstitutional under it's own constitution. Following that ruling, in May of 2004, the Commonwealth began issuing marriage licenses to gay couples. This prompted a rush to the altar for many Massachusetts couples that had waited for years for the right to marry. People from other states, including New York, also obtained marriage licenses and were married in Massachusetts, the first state in the union to authorize such unions.

To prevent out-of-state residents from marrying in Massachusetts, the Commonwealth soon invoked a long-forgotten statute, originally enacted in 1913 to keep mixed-race couples from marrying there if their own home states would not have permitted such marriages. In 2008, that 1913 law was repealed, again opening up the possibility of legal marriage in Massachusetts for couples from states that do not issue marriage licenses to same-sex couples, like New York and New Jersey.

DOMA

DOMA became law in 1996 during President Bill Clinton's administration. The federal law defines marriage as a legal union between one man and one woman, and declares that the federal government ' and any state that so chooses ' may refuse to honor same-sex marriages, even if entered into in a state or country that recognizes the legality of such unions.

Because of DOMA, the federal government was left free to declare that it would not recognize same-sex marriages, no matter where entered into. Such unions are now legal not only in Massachusetts, but also in Connecticut, Iowa, New Hampshire, Vermont and Washington, DC. New York, Rhode Island and Maryland officially recognize same-sex marriages entered into outside their states, though such unions are not performed within those states.

The implications of the federal government's failure to accept as valid the marriages of gay partners are significant. Because same-sex couples legally married within the United States and elsewhere are not, in fact, legally married in the eyes of this country, they are not entitled to demand the financial and legal benefits available from the federal government to opposite-sex couples. According to estimates from the General Accounting Office, as of Dec. 31, 2003, there were at least 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. These statutory provisions pertain to a variety of subjects, including, but not limited to, Social Security, taxes, immigration and health care.

Conclusion

In next month's newsletter, we will discuss the reasons why the court in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services determined that DOMA violates the privileges reserved to the Commonwealth of Massachusetts by the 10th Amendment to the Constitution.