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More Analysis on the 2nd Circuit DOMA Ruling

Jonathan Adler has further analysis of the recent ruling from the 2nd Circuit Court of Appeals striking down the Defense of Marriage Act. One of the important things I didn’t discuss when I wrote about it the other day is that the ruling didn’t strike down the entire law, it only struck down section 3, which is the part that forbids the federal government from recognizing same-sex marriages performed in states where it is legal.

Why is this important? Because it doesn’t overturn section 2, which says that no state has to recognize same-sex marriages performed in other states. And it’s entirely plausible that the Supreme Court would, as several lower courts have done, let section 2 stay in effect while striking down section 3. Adler writes:

If Section 3 of DOMA is unconstitutional, this does not necessarily mean that state laws barring recognition of same-sex marriages are equally suspect. State governments arguably have interests in the definition of marriage greater than those of the federal government. Family law is the traditional province of state governments and the sorts of interests that can be claimed, such as encouraging traditional family structures for purposes of child-rearing, are more important to state governments than to the federal government. As a policy matter I find such arguments unconvincing, and I support state recognition of same-sex marriage, but it’s not clear to me such interests are necessarily insufficient to justify state policies that prefer traditional family structures.

As a final note, I think Judge Jacobs’ opinion makes it more likely that the Supreme Court will strike down Section 3 of DOMA when this issue finally comes before the Court. Indeed, the opinion provides a roadmap for a fairly minimalist holding against DOMA of the sort the current court might embrace.

He may well be right here. Marriage laws are traditionally a state responsibility. The federal government provides all sorts of rights and protections that attach to marriage, but they did not, until DOMA was passed, determine which marriages that were legal at the state level were to be recognized in determining eligibility for those rights and protections. It’s not at all farfetched for the federal courts to say that the federal government has to accept legal marriages from every state while allowing the states to not recognize same-sex marriages from other states.

And it would not surprise me at all if Chief Justice Roberts and Justice Kennedy agreed with the liberals in a narrow ruling that struck down section 3 while leaving section 2 in place.

Comments

  1. gshelley says

    No doubt the conservatives will start agreeing with this decision, as they have always been insistent on marriage being a choice for individual states, so they idea that the federal government will tell a state it doesn’t recognise marriages performed there will be something they are against

  2. Sastra says

    I was recently talking to a same-sex couple who were married in California during that legal window and they brought up a problem I hadn’t even considered: filing income taxes. They have to file state taxes as a married couple; they cannot do that on the federal tax forms. It’s an accountant’s nightmare — and the IRS is no help. Their experts just tell them they have no idea what they should put down where. It’s all confusion, nobody knows, thanks for asking. But oh, there is no guarantee someone at IRS won’t complain and come after them anyway, regardless of what they do. Nice.

    I don’t know. Maybe the IRS will help force the legal issue towards uniformity.

  3. steve84 says

    Section 2 is very much redundant. Decades ago the Supremes created something called the “public policy exception” to the Full Faith and Credit Clause, which allows to states to ignore laws they don’t like. Officially they can ignore laws from other states that conflict with a clearly stated “public policy”, such as an anti-gay constitutional amendment. There is nothing that compels a state to acknowledge a first-cousin marriage from another state. They could decline to honor it. It’s just no one can be bothered to make a fuss about it.

    Of course for a modern country this is just beyond absurd. People should have the same rights no matter where they live. The US isn’t a lose confederation anymore like in the 18th century.

  4. Michael Heath says

    I would be very grateful if someone could explain why constitutional experts use the term “interests” when discussing the actions of government which prohibit or suppress the exercise of certain rights by certain people. It seems to me they use ‘interest’ as a lever which diverts attention from the fact certain government behavior has them either:
    a) executing powers never constitutionally delegated to them or else,
    b) when their actions have them failing to sufficiently defend the rights of certain individuals.

    However I’d be the first to admit I hold this conclusion very humbly and in ignorance. So I’d be very appreciative if anyone understands its proper usage and definition in this context.

  5. eric says

    Sastra @2:

    They have to file state taxes as a married couple; they cannot do that on the federal tax forms. It’s an accountant’s nightmare

    AIUI, that problem should go away (if the circuit ruling is upheld). The fed will have to recognize any marriage carried out in the various states, its just that the states will not have to recognize marriages in other states (assuming section 2 stays on the books).

    Still a problem. Still odious. Just no longer a problem for the IRS; if your state income tax says you’re married, then your fed income tax can say that too.

  6. Chiroptera says

    If the Constitution does not protect the right to same sex marriage, then I think Section 2 is on pretty solid ground. If I recall correctly, states were not required to recognized mixed race marriages performed in other states until anti-miscegenation laws were declared unconstitutional in their entirety.

    Likewise, if you look up current state laws, some states allow first cousins to marry. If I read this correctly, some states don’t allow marriages to be performed between first cousins but recognize such marriages if performed in other states, while other states won’t recognize such marriages at all.

  7. steve84 says

    @Chiroptera
    All states recognize first-cousin marriages performed elsewhere. They don’t have to, but they just don’t care enough to make a fuss about it.

  8. whheydt says

    As regards income tax filing in California…California does NOT require filing a joint tax return. Married couples can file separately, just as they can file Federal tax returns that way.

    There is, though, an interesting possibility regarding how one files where. Before the Feds added joint filing, everyone filed on their individual income, married or not. Since California has long been a community property state, people took to adding their incomes together, dividing by two and each filing on those parts.

    The Feds objected.

    The courts held that it was perfectly legal.

    It was after that that joint filing was added to the tax code…in the late 1940s.

    One wonders what would happen if an SSM pair were to do this today…and (when challenged) cite the pre-joint-filing cases as precedent when the IRS objects.

  9. says

    “Marriage laws are traditionally a state responsibility.”

    Except when they are not. In 1968, 18 states had laws which prohibited interracial marriages. The United States Supreme Court ruled unanimously in Loving v. Virginia that state marriage laws cannot override the US Constitution’s guarantees of Due Process and Equal Protection.

    What terrifies conservatives is that a ruling overturning section 2 of the Denial of Marriage Act is inevitable:

    Marriage is one of the “basic civil rights of man”…. To deny this fundamental freedom on so unsupportable a basis as the [sexual orientation] embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious [gender] discrimination. Under our Constitution, the freedom to marry, or not marry, a person of [the same gender] resides with the individual and cannot be infringed by the State.

    They see DOMA as all-or-nothing because they recognize — rightly, I believe — that the slightest crack will shatter it completely.

  10. cjcolucci says

    Section 2 of DOMA doesn’t actually do anything. Long before DOMA, states had asserted the right to decide for themselves what out-of-state marriages they would recognize under the so-called “public policy” exception. Generally, and for very good reasons, states tend to recognize as valid marriages that are valid in the state where they were performed — at least if the state has some connection to the couple, and isn’t just acting as a marriage mill for transients — even if the marriage would not be legal in the state of residence or domicile. But they don’t have to. While no state will refuse to recognize a marriage over minor differences in age-eligibility or degree of cousin-hood, most states probably would refuse to recognize plural marriages or marriages between siblings if some state or country legalized them. Many states now refuse to recognize same-sex marriages valid elsewhere. (Before New York recognized same-sex marriage for New Yorkers, it did recognize same-sex marriages that were legal in the state or country where the marriage was celebrated.)
    The issue in Loving v. Virginia was not whether, under the public policy exception, Virginia was required to recognize an inter-racial marriage validly entered into in DC; it was whether Virginia could have such a public policy against inter-racial marriage at all. The Supremes said it could not. And unless the Supremes are prepared to say that no state can refuse to allow same-sex couples to marry, as it said no state could refuse to allow mixed-race couples to marry, Section 2 of DOMA, while pointless, would be upheld.

  11. Hercules Grytpype-Thynne says

    As a policy matter I find such arguments unconvincing

    Interesting word, “unconvincing”. I had no idea it appeared in the thesaurus as a synonym for “bullshit”.

  12. wscott says

    if your state income tax says you’re married, then your fed income tax can say that too.

    So what happens if you have to file in different states (because you moved, or because you have income in different states), one recognizes SSM and one doesn’t?

  13. beergoggles says

    @ #2 Sastra: As a resident of Massachusetts, my accountant has to prepare two state forms. One form to file with the state as married. Another form as single. That single state tax form is then used in preparing the federal tax return. I’m guessing there’s more complicated number juggling involved but I imagine your California friends have to do a similar thing when filing their taxes.

  14. tomh says

    @ 7
    All states recognize first-cousin marriages performed elsewhere.

    Not true. For instance the County Clerks’ Guide To Kentucky Marriage Law reads;

    “Marriage between first cousins is prohibited by KRS 402.010. There are no exceptions to the prohibition and such a marriage is incestuous and void. Kentucky does not recognize such a marriage between first cousins even if it is consummated in another state.”

    cjcolucci is exactly right, section 2 of DOMA is completely superfluous and unnecessary, since states have always had the right to not recognize other states’ marriages. They have done so for all sorts of reasons, some as odd as people were too recently divorced. The only way to force states to recognize all same sex marriages is for the Supreme Court to declare laws prohibiting SSM unconstitutional.

  15. says

    Except when they are not. In 1968, 18 states had laws which prohibited interracial marriages. The United States Supreme Court ruled unanimously in Loving v. Virginia that state marriage laws cannot override the US Constitution’s guarantees of Due Process and Equal Protection.

    This right here is the meat of the whole thing. Consistency with this position requires that the Supreme Court overturn not just all aspects of DOMA, but also all state laws prohibiting SSM. Whether they actually will or not is another question, but the precedent is unmistakable.

  16. eric says

    This right here is the meat of the whole thing. Consistency with this position requires that the Supreme Court overturn not just all aspects of DOMA, but also all state laws prohibiting SSM.

    Now all you need is a supreme court that wants to apply civil 1960s era civil rights precedent consistently to gay rights. Good luck with that.

  17. frog says

    Perhaps my confusion stems from being a single person–What is the “interest” any state has in any marriage laws?

    The only thing I can come up with is they have an interest in preventing bigamy, as it might create problems if someone dies intestate and now there are multiple spousal claims.

    I understand there are more than 1000 benefits a married person has that are not enjoyed by single/unmarried people. Other than pure greed (“We don’t want so many people claiming financial spousal benefits”), what detriment does any government suffer if gay couples can marry?

  18. beergoggles says

    @18

    Perhaps my confusion stems from being a single person–What is the “interest” any state has in any marriage laws?

    It’s how non-familial next of kin is designated as far as the law is concerned. There really isn’t another way to do it other than adoption. And of course kinship plays a large role in matters of family law, inheritance, taxes and other rights and obligations.

  19. acoolerclimate says

    I have some questions I’ve never seen answered. Okay, say that Section 3 goes away. So then…..

    1. I live in MA and get married to my same sex partner. Now the federal govt will recognize it. Great. But say I now take a job transfer to PA. PA doesn’t recognize it. But they aren’t divorcing me, correct? So technically I’m still married, so won’t the Fed’s still recognize it?

    2. How about if we move instead to NJ, which has civil unions. Does this change anything?

    3. My sister, a lawyer, says no one has yet used the correct reason to get rid of section 2 of Doma. She says the right of travel is what we should argue. If I’m married in MA, we cannot move to other States that won’t recognize the marriage, without direct harm to us. That abridges the right of travel, doesn’t it?

    4. If we moved to PA, and now our marriage is not recognized, does that mean, my spouse (bisexual), could now marry a woman? Did PA divorce us or not? And if not, then we are still married?

  20. tomh says

    @ #20

    1. Yes. The Federal government has always recognized legal marriages from all states no matter where you live. Until DOMA.

    2. Not as far as the federal government is concerned. But the situation would be the same as a state that declared that marriages between first cousins are void, (Kentucky, for instance). If NJ declared same sex marriages void, you would receive no state benefits from NJ that married couples are entitled to.

    3. Overturning Section 2 would change nothing since states can refuse to recognize marriages from other states anyway. Most of these DOMA lawsuits haven’t even challenged Section 2, probably for that reason.

    4. A state not recognizing the marriage, or declaring it void, is not equivalent to divorce. You would still be married.

  21. thomwatson says

    @whheydt #9 asks:

    There is, though, an interesting possibility regarding how one files where. Before the Feds added joint filing, everyone filed on their individual income, married or not. Since California has long been a community property state, people took to adding their incomes together, dividing by two and each filing on those parts.

    The Feds objected.

    The courts held that it was perfectly legal.

    It was after that that joint filing was added to the tax code…in the late 1940s.

    One wonders what would happen if an SSM pair were to do this today…and (when challenged) cite the pre-joint-filing cases as precedent when the IRS objects.

    I’m not sure I understand what you’re asking here. The IRS in fact requires married and domestically partnered same-sex couples from California to do precisely this income (and deduction) splitting at the federal level, even while having to file individually and as single.

    As part of a same-sex domestic partnership in California, this is what our tax activity looks like: We do file jointly in the state, though as you note we could file as “married filing separately”; in either case, we are required by California community property law to combine our incomes and treat half of the total as belonging to each of us. Since we file jointly in the state, this is not really an issue for our returns.

    However, we are required by DOMA to file our federal returns as single. The IRS, however, recognizing California’s community property laws (the same is true of Nevada and Washington, also community property states with domestic partnership), has since 2010 required us to do the income and deduction splitting that California requires. We total up our individual income and deductions, split them in half and each of us claims half. We then have to include a letter explaining that we are in a domestic partnership, referencing the IRS memorandum that requires us to do this as well as include a copy of our partner’s information, and then mail our returns in separate envelopes — and hope that the IRS agent handling our files knows of this regulation, looks at the included documentation, and doesn’t flag us for an audit because the W2s we’ve included don’t in any way match the numbers we’ve put on our forms.

    The first year, one of us (as well as many other same-sex couples we know) got a warning letter precisely because the agent who handled his return didn’t know of the agency’s own regulations, but we were able to avoid an audit or penalties with a return letter explaining that we were in fact following the regulations and pointing the agent to the memorandum. Each year we worry again that our returns will be flagged because of the mismatch of our W2 to what’s entered on our forms. It’s insane. Many same-sex couples in California end up practically having to pay for an accountant or tax preparation expert, just because the differences between the state and federal filing can quickly become very complicated once you get beyond simple job-related income, and because the IRS isn’t always aware of its own requirements vis a vis domestic partnership and community property.

    This change in regulations occurred two tax years ago. It actually makes it a little easier than it was previously, when we had to create a dummy federal form as though we were filing jointly at the federal level, in order to get some of the numbers we needed for our state forms where we were able to file jointly, and then set that aside and complete separate individual forms for the feds. Now that the IRS is in accord with the state on community property laws, even for domestic partnerships that they don’t in fact otherwise recognize, we at least no longer have to do that dummy form.

  22. thomwatson says

    And then there’s also the separate but related situation regarding our health insurance. My partner covers me on his employer’s plan, just as many married employees might elect to cover an unemployed or underinsured spouse. His employer’s plan in based not in California, but in Michigan, where domestic partnerships and same-sex marriages are not recognized. His employer’s plan charges him more to include me than it charges an employee covering a similarly situated opposite-sex spouse. Then the federal government, because of DOMA, considers the portion of his income and his employer’s contribution that covers my portion of the health insurance to be additional income, upon which my partner is taxed. Opposite-sex married couples are exempt from income tax on the same contributions to their spouse’s health insurance. Finally, his insurance plan offers a not-insignificant stipend (about $800/year) that employees can put toward reimbursing them for out-of-pocket medical expenses that they incur for themselves or for their covered spouse and children. Same-sex domestic partners are specifically excluded from this reimbursement, so any out-of-pocket expenses for my medical care are not eligible for reimbursement in the same way those for an opposite-sex spouse would be.

  23. thomwatson says

    @tomh #21

    3. Overturning Section 2 would change nothing since states can refuse to recognize marriages from other states anyway. Most of these DOMA lawsuits haven’t even challenged Section 2, probably for that reason.

    In fact, because of the redundancy of Section 2 regarding existing state jurisdiction on recognizing marriages, as far as I’m aware (I’m part of the management team of a U.S. marriage equality organization) no current lawsuit is challenging Section 2; all the ones I’ve been aware of have been dismissed for lack of standing. In any case, all of the DOMA cases currently awaiting cert by the U.S. Supreme Court have challenged only Section 3.

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