Bye Bye BLAG?


John Boehner has apparently decided that it’s pointless to continue defending the constitutionality of the Defense of Marriage Act. Thus, the Bipartisan Legal Advisory Group has begun to file motions withdrawing from those DOMA cases that remain in the courts. In one:

The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.

This will presumably happen in other cases as well, but I wonder about any cases that are challenging Section 2 of DOMA, the provision that says the states do not have to recognize same-sex marriages performed in other states where they are legal. Not only did the Windsor decision not affect Section 2, the federalist nature of the ruling clearly supports the constitutionality of that provision. And I’m pretty sure there are multiple cases in the courts challenging that provision. I also wonder if perhaps the DOJ is still defending the law in those cases. Anyone know?

Comments

  1. vmanis1 says

    I never thought I’d say this, but I’m very grateful BLAG made its arguments, because now both posititions on marriage equality have been argued in court, and in particular before SCOTUS. If the court had found for Windsor on some kind of technicality, it might have been possible to argue that was a special case. As it was, the anti-equality arguments have been thoroughly tested before the court, and found wanting.

    So, in a perverse application of the Law of Unintended Consequences[*] so beloved by conservatives, Congress’s decision to fund the anti side has resulted in a stronger decision for marriage equality than would otherwise have been the case. So thanks, GOP!

    [*]The Law of Unintended Consequences states that whatever liberals do turns out badly. This application of it is perverse in that conservative positions are ipso facto always correct and never have unintended consequences.

  2. dcsohl says

    Section 2 says that individual states have no requirement to recognize same-sex marriages solemnized in other states. Is this really “just restat[ing] existing law”?

    Different states have different age requirements, after all. In Minnesota you can marry (with parental consent) as young as 15; in Nebraska nobody under 17 can get married at all. So if a couple, one of whom is 16, gets married in Minnesota and they then move to Nebraska, will Nebraska recognize their marriage? I rather think so, but am not certain.

    If Nebraska will recognize the underage Minnesota marriage, why should same-sex marriages conducted in Iowa be treated any differently?

  3. Chiroptera says

    dcsohl, #3: Section 2 says that individual states have no requirement to recognize same-sex marriages solemnized in other states. Is this really “just restat[ing] existing law”?

    Yes, it is, and it has been forever, even before DOMA. It was true for inter-racial marriage, it is true for first-cousin marriages, and it is presumably true for same sex marriages. States may or may not recognize a marriage that cannot be legally performed in that state if it was performed in a state in which it is legal.

    As for your example, I have no idea how the child marriage laws compare state by state.

  4. tomh says

    Section 2 has always been redundant; it’s not law, exactly, but it has been established doctrine for a hundred years and more, that the Full Faith and Credit Clause does not compel a state to accept a marriage from outside its borders that is contrary to its public policy. It’s the reason that first cousin marriages are not accepted by a number of states, though they were legally executed in other states and are recognized by the federal government. Kentucky, besides voiding such marriages, even criminalizes cohabitation of first cousins (incest).

    I don’t believe the DOJ is defending any DOMA cases, but challenging section 2 will not be the route that strikes down SSM laws.

  5. Ryan Jean says

    @dcsohl, @Chiroptera,

    The issue is a little more complicated than that. Generally, the case against Section 2 is that it prohibits states from being forced to recognize marriage equality through Article IV, Section I of the Constitution (better known as the “Full Faith and Credit Clause”). That was certainly part of the legislative intent, and there are a smattering of other examples at the state level both over same-sex and historically over interracial marriage. (Example: a 1913 Mass. law voids any otherwise valid in Mass. marriage performed there by residents of another state if that marriage would not be allowed in their home state.)

    While it’s true that FFC could theoretically be attempted as an argument in such a manner — especially given the legislative history on it — the judicial history is largely absent on attempts to do so over issues of marriage, even for matters of interracial marriage half a century ago; thus most scholars think it would be found lacking in court without the assistance of other precedent. Basically, FFC as it’s constitutionally understood, forces a state to recognize another state’s action if that same action would have been legal in the first as well, but does not force a state to recognize actions of another state that are against the “public policy” of the state.

    Stated that way, states generally and traditionally recognize any construction of marriage from another state, but are only bound to do so in cases where the same variation (ages, degree of familial relation, etc.) would be allowed in that state as well. DOMA Section 2 actually permits a state not merely to avoid recognizing same-sex marriages from other states in their state at all, but in theory to deny even recognition in a state with marriage equality (or some other similar construct such as civil union) of a same-sex marriage from another state. DOMA Section 2 could permit, for example, DC and Maryland to refuse to accept same-sex marriages from each other (even though they both have marriage equality), and as a practical example still actively permits Nevada to refuse to accept same-sex marriages AND civil unions performed elsewhere, even if the marriages are to be treated only as civil unions, even though Nevada has same-sex civil unions.

  6. timberwoof says

    I agree with vmanis1. When a bad law is thoroughly tested in court and is defeated despite vigorous defense, that has a much bigger positive effect than this waffly, technicality-ridden “not support”. That, as various DOMA and Prop 8 rulings have shown, leads to weaker decisions and precedent. I smell a rat.

  7. Jeff D says

    Ryan is correct. As a matter of “comity” and full faith and credit, State A may well recognize as valid a marriage that is valid under another State B’s law but that would be absolutely void under State A’s law (e.g., in my own State of Indiana, a marriage between first cousins under age 65 is void, but we have a reported case in which a Tennessee marriage between first cousins who moved to Indiana was recognized as valid here). A state generally may refuse to extend comity to the marriage laws of another state if the other state’s marriage law in question violates a declared public policy.

    About 37 states have either statutory or constitutional same-sex marriage bans, prohibiting state courts and state and local government from recognizing as valid a same-sex marriage that is valid in the state in which the marriage was solemnized. As these statutes are usually worded, they state a public policy that prohibits extending comity to the marriage laws of another jurisdiction that allows same-sex marriage; they prohibit recognizing a same-sex marriage that was legally established in New York or Vermont, etc., even though the other marriage laws of the state would recognize the validity of other kinds of marriages (underage spouses, first cousins, etc.) that would be void under local law. This amountts to a “declared public policy” that comity will not be extended to the other jurisdiction’s marriage law. Bigotry made official.

    Section 2 of DOMA does duplicate that idea from the state statutes that prohibt extending comity, but it’s not exactly surplusage, because section 2 of DOMA, so long as it stands, would be a basis to refuse to extend purely federal-law benefits to a couple who were legally married in D.C. or in one of the 13 states, and who then moved into and lived in one of the same-sex marriage ban states. Section 2 of DOMA might seem like surplusage, because generally (and before section 3 of DOMA came along), federal law determined whether two people are “married” to each other solely on the basis of state law.

    We lawyers are all waiting for the various federal agencies and cabinet departments (Treasury/IRS, Veterans Affairs, etc.) to issue guidance about whether they will continue to rely on section 2 of DOMA, and deny federal benefits (e.g., “surviving spouse” treatment under the federal estate tax law) to couples who move from a same-sex-marriage-is-legal state to a state in which it is not legal. The federal agencies could announce that they are going to ignore section 2 of DOMA, for the purpose of determining federal benefits, and thaty they will extend federal benefits regardless of the laws of the state in which the couple live, so long as they were married in a state that allowed same-sex marriage. I’d be surprised if this happened. If this is not what happens, and if federal agencies allow or withhold federal benefits on the basis of the marital status of the couple (or a surviving spouse) under the laws of the state in which they reside, then same sex couples who live in same-sex-marriage-ban states will be S.O.L.

  8. tomh says

    On a related note, an Ohio Federal District Court just granted a temporary restraining order requiring the state to recognize the validity of a same-sex marriage performed in Maryland. Because the state recognizes marriages from other states that would be illegal in Ohio, such as first cousin and minors, it found no basis to deny same sex marriages performed in other states. The court relied on among other things.

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