Durham Law Student, Jesse Bachir, explores the legal position of same-sex marriage in the US.
Same-sex marriage has seen some very good progress lately, especially with the recent election. In fact, the election brought same-sex marriage to Maine, Maryland and Washington by referendum – the first time in US history that same-sex marriage has been legalised via popular vote. Minnesota voters also defeated a proposed constitutional amendment to ban same-sex marriage at the ballots during the election. All of this, along with openly gay, lesbian and transgender representatives being elected to national and state legislators, as well as President Obama being elected for a second term, made this past election a very exciting time for the LGBTQ community. However, there are still some major hurdles to overcome for same-sex marriage in the United States
Marriage in the US 101
Very briefly, it is important to note the distinction between state and federal powers in the United States before continuing with any discussions of same-sex marriage within the US. Marriage is a right reserved by the states – meaning that they have the power to legislate as to the definitions and requirements of marriage. If you want to get married, you must go to the state and follow their particular rules governing marriage.
Once you are married, you are conferred apposite rights and privileges by the state as well as the Federal Government. However, it is up to each individual state to determine who is married within their jurisdiction – meaning that in order to gain access to federal marriage rights, you must first have access to state marriage rights.
Same-sex marriage – a state issue?
DOMA – Section 2
The Defense of Marriage Act (DOMA), enacted in 1996 under the Clinton administration, poses one of the largest problems for same-sex marriage. DOMA legislates specifically on same-sex marriage and effectively provides, in Section 2, that States are not required to recognise same-sex marriages which have taken place in other states. As such, if a same-sex couple gets married in, say, New York, and then moves to any of the states where such marriages are illegal or not recognised, that the state will then refuse them all legal rights associated with marriage. Since its enactment, states have been hiding behind Section 2 of DOMA and claiming that they are under no legal or constitutional obligation to recognise the same-sex marriages of other states.
But this approach is far from problematic. Section 2 of DOMA potentially faces a major constitutionality problem – namely, that it violates the ‘Full Faith and Credit’ clause (Article IV Section 1) of the US Constitution, which states that:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
In principle, therefore, all states should recognise the same-sex marriages of all other states. In fact, one would assume, the Full Faith and Credit Clause, being a part of the US Constitution, is supreme law which would mean that Section 2 of DOMA is unconstitutional and ought not be applied.
If only it were this easy…
The Tenth Amendment to the US Constitution states that:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This is where the law becomes more complicated. A power to legislate on marriage, perform marriages, recognise the legality of marriages, and the like is not delegated to the US Federal Government. Rather, such powers are, in accordance with the Tenth Amendment, reserved to the individual states. The argument that has been given in defence of Section 2 of DOMA, therefore, is that the US Congress in passing DOMA merely expressly stated a power which the states already had. Since powers related to marriage are a state’s right, in theory (and in practice), one state’s laws on marriage need not agree with any other state’s laws. So, if one state has legalised same-sex marriage and recognises same-sex marriages, then any other state, according to reserved powers, need not recognise same-sex marriages in any way – to impose such an obligation would infringe upon state’s rights, violate the Constitution and, ultimately, be unconstitutional. Even President Obama has suggested that he supports leaving the decision up to the individual states.
In addition, the Full Faith and Credit clause has also not been used to its full potential. While typically, states recognise court rulings of other states (almost) without question, when it comes to marriage such recognition is not always practiced. This is not just limited to same-sex marriage. For example, prior to the civil rights movement, some states recognised interracial marriages, while others did not – and this did not raise too many eyebrows in terms of constitutionality. Historically, states like to argue that if an act of another state goes against their laws or ideas of morality then it becomes a question of public policy for the state to decide. Essentially, this means that states believe that their retained sovereign powers allow them to not recognise the acts of any other state if they believe such acts to be against their interests
We’re left then with two questions: (1) does the Full Faith and Credit clause of the US Constitution infringe on state sovereignty, essentially violating the Tenth Amendment; and (2) if so, can states be forced to recognise same-sex marriages of other states? These questions have yet to be answered. The courts have been hesitant to attack Section 2 of DOMA, likely because they are afraid of treading on the toes of state sovereignty and going against historical practices.
What about same-sex couples who have been able to marry?
DOMA – Section 3
Section 3 of DOMA states that:
“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.”
This means that same-sex couples who are legally married and reside in a state that recognises same-sex marriage, are allowed absolutely no access to federal rights pertaining to marriage, of which there is a very long list.
The constitutionality of Section 3 of DOMA is much easier to determine – the Federal Courts have, thus far, been more than happy to strike down Section 3 as being unconstitutional. The current major cases pertaining to Section 3 of DOMA are: Gill v. Office of Personnel Management, Massachusetts v. United States Department of Health and Human Services, Golinski v. Office of Personnel Management, Windsor v. United States, and Pedersen v. Office of Personnel Management.
The findings of unconstitutionality in these cases have been based on the Fifth and Fourteenth Amendments. The Fifth Amendment contains many rights, but most important here is the ‘Due Process’ clause, which is interpreted by the courts as a right of substantive due process. Section 1 of the Fourteenth Amendment also contains a due process clause, as well as the ‘Equal Protection’ clause which states that:
“[No State shall] deny to any person within its jurisdiction the equal protection of the laws.”
The Federal Courts have thus far found Section 3 of DOMA to be unconstitutional even on a rational basis test. The rational basis review is a test used for cases pertaining to the Fifth and Fourteenth Amendments, asking whether or not a government’s action is in pursuit of a legitimate aim. Rational basis is the least rigorous test of scrutiny used by the courts – meaning that it is the easiest test for a government to pass. Unfortunately for the LGBTQ community, this is the standard test in most cases pertaining to LGBTQ rights. This is in contrast to, for example, sex discrimination, which is tested against the higher standard of ‘intermediate scrutiny’, and racial discrimination, which is assessed against the most rigorous ‘strict scrutiny’ test.
In the case of Gill v. Office of Personnel Management, District Judge Joseph Louis Tauro stated the following:
“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”
District Judge Tauro stated in his opinion, based on the argument proffered, that he found no legitimate aim which DOMA sought to protect or pursue, even under the rational basis test. Other judges – including those in all of the District Courts through which the aforementioned DOMA cases have proceeded – have also stated as much in their rulings.
The Courts have also found DOMA unconstitutional under the Fourteenth Amendment. Under the amendment, every person is entitled to equal protection under law. The courts have found DOMA to violate this, primarily because same-sex couples are not entitled to the same federal benefits conferred to opposite-sex couples – for example, tax benefits. Using the rational basis test, the courts have not found the government to be acting in pursuit of a legitimate aim.
Section 3 of DOMA has proven to be much easier to deal with and has been readily handled by the courts – it is a much easier argument to make and does not run the risk of stepping on the toes of State sovereignty in order to mark DOMA unconstitutional.
What Does All This Mean? Where Will We Go From here?
Current precedent holds that Section 3 of DOMA is unconstitutional in that it denies recognition of same-sex unions at the federal level, and it is important to note that case precedent only applies to federal recognition of same-sex marriages. The Supreme Court is scheduled to decide whether or not it will hear any or all of the five DOMA cases, as well as the Prop 8 case, on the 30th November. If the Court does take on any or all of the five DOMA cases and finds Section 3 of DOMA to be unconstitutional, this would mean that same-sex married couples, who are legally married and reside in a state which recognises same-sex marriage, will have access to federal rights and privileges associated with marriage.
However, unless the Supreme Court were to also hand down a ruling striking down Section 2 of DOMA under the ‘Full Faith and Credit’ clause, states will still not be required to recognise the same-sex marriages of other states – which, quite obviously, makes the lives of many same-sex couples very inconvenient, to say the least.
Given the election this month, we can hope for the best if the Supreme Court decides to review any of the DOMA cases. Hopefully, the Court will look to the progress being made and see it as a social movement, of which they do not want to be on the wrong side.
But what about legalising same-sex marriage in all fifty states? This is far more complex than it ought to be, unfortunately, and is likely to take a considerable amount of time. The Supreme Court is unlikely to rule that same-sex marriage should be legal in all fifty states, especially since the DOMA cases only deal with federal definitions of marriage. Additionally, it is beyond the power of the US Congress to legalise same-sex marriage in all fifty states. So, in the meantime, we will all have to wait and see what happens with the DOMA cases and move from there. It does leave us with the question: should states’ rights trump the individual rights of the LGBT community?
For more information on the legal conflict between the Full Faith and Credit clause and the Tenth Amendment, see Tobias Barrington Wolff’s article titled “Interest Analysis in Interjurisdictional Marriage Disputes” which can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=643224.