Don Sherfick

The Defense of Marriage Act (DOMA): The POTUS and A Primer Part II

Filed By Don Sherfick | August 23, 2007 9:15 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: Defense of Marriage Act, DOMA, gay marriage, HRC, Logo, marriage, New Jersey, same-sex marriage

Last Tuesday I initiated a short series of articles intended to be a primer/refresher on the overall subject of marriage versus civil unions. I note that since then Bilerico fellow contributor Marla Stevens has weighed in with some comments about the inadequacies of civil unions. While I have my own opinions concerning which is preferable/acceptable to me, I'll hold them until later. For now some more facts, principles, and background.

My initial piece began with the observation that when Presidential hopefuls like Mike Gravel and Dennis Kucinich say they favor same-sex marriage, it leaves a lot unsaid as to how they would/could be instrumental in achieving it. I continued that marriage is a status bestowed under state law, although federal benefits also based on it. Then I indicated that for the most part, State A generally considers a marriage contracted in State B to be valid, even though it might not be if contracted in State A itself.

Of course, there is a very large exception to that last statement: same-sex marriage. This is where the Defense of Marriage Act comes into play. Continue with me past the break and I'll explain further, beginning with some history.

Back in the early 1990's, some gay and lesbian couples in Hawaii filed suit, claiming that under the Hawaii state constitution, they were entitled to be married. Because Hawaii's constitution contained language prohibiting discrimination because of gender, and made it easier to make successful equal protection arguments than is the case in most other U.S. jurisdictions, including Indiana, they won preliminarily in the state's highest court, which sent the matter back to a lower court for more detailed consideration.

This set off alarm bells on the U.S. mainland among evangelical conservatives and their allies. They feared that if same-sex marriages became legal in Hawaii, all of the other states would be forced to recognize them under the "Full Faith and Credit" Clause of the U.S. Constitution and related principles.

That clause essentially says that each state shall give "full faith and the public acts, records, and judicial proceedings of every other state", and gives Congress some authority concerning how this may be done and its effect. Legal scholars have not been in full accord as to how this clause affects inter-state recognition of marriage, or exactly what the Congressional power in this area means. Without getting more into the legal nitty-gritty, suffice it to say that many feel the Full Faith and Credit clause wouldn't compel a state to accept another state's marriage anyway, if it believed the marriage to be against its own "public policy".

But that view wasn't good enough. In response to the Hawaii situation Congress passed and President Clinton (in the middle of the night) signed the federal Defense of Marriage Act or DOMA as it's commonly called. DOMA says two things: (1) a state doesn't have to recognize a same-sex marriage of another state, and (2), for purposes of federal law (income tax laws, etc.) only opposite sex marriages are recognized.

As it turned out, before the Hawaii Supreme Court could issue its final decision, Hawaii amended its constitution to give its legislature exclusive power to restrict marriage to heterosexual couples, and since Hawaii law (the one being challenged) already did so, that ended the matter. (The Hawaii legislature subsequently did bestow some degree of civil union type benefits, however) But DOMA was in place, and remains on the books.

In the next installment I will continue the DOMA story and get into the role of state constitutional amendments in the marriage debate. As I said in the first post, one thing a Presidential candidate who says he or she favors full marriage rights can do if elected is to push for, and sign, legislation repealing DOMA.

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beergoggles | August 23, 2007 10:13 AM

Just a nit:
Hawaii amended its constitution to give its legislature exclusive power to restrict marriage to exclude heterosexual couples,

You probably didn't mean to say that Hawaii doesn't allow heteros to marry.

And now a question:

What would happen if male A married male B in Massachusetts and then moves to, say, Virginia (where their marriage isn't recognized) and married female C?

I'm sure it's been asked before, but I've never really found an answer to that hypothetical.

Don Sherfick | August 23, 2007 2:35 PM

Beergoggles: Thanks for spotting my obvious goof about the amendent to the Hawaii constitution. It's fixed now. Hopefully in the interim no opposite sex couples cancelled their Hawaii marriage and honeymoon plans.

You raise a fascinating question because so far as I know, bigamy (being married to more than one person at the same time) is a criminal offense in most, if not all, U.S. jurisdictions. My first thought is, that just like the interracial couple in Loving vs. Virgina who were legally married in D.C. (I think) but faced prosection in Virginia, it might well depend on where A is now physically. I don't know about the wording of the Massachusetts bigamy statute, but I suspect that since its Supreme Judicial Court established full marriage equality (within its boundaries), and since it recognizes Virginia's marriages, A maybe ought not to vacation in P-town. But since Virginia on the other hand doesn't recognize the Massachusetts marriage, it couldn't validly prosecute A under its own bigamy statutes. If there are any other states (I am not current in my knowledge here) that recognize Massachusetts marriages, then A might be in legal jeopardy there, also.

I know you didn't just limit your question to bigamy, and there may be a host of other things, like property distribution under conflicting intestate succession (without a will) statutes. Short answer, what a mess that could be! And let's not even THINK about what would happen if, in addition, male B and female C tied the knot.

beergoggles | August 23, 2007 5:11 PM

Well the hypothetical would be a great way to test DOMA.

If A married B in MA, then moved to VA and A married C.

Due to DOMA, he cannot be prosecuted via the federal government since what he did was legal.

The interesting quirk is that MA cannot prosecute someone for committing an act in another state that is legal in that state, once they return to MA. For example, MA cannot prosecute someone (once they return to MA) for going to Vegas and engaging in prostitution. Similarly, MA would not be able to prosecute someone who legally had an opposite sex marriage in VA since it was legal to do so in VA.

Legally it seems, same sex marriage in MA has ended up legalizing bigamy.

Don Sherfick | August 24, 2007 7:53 AM

Beergoggles: Since so far as I know there is no federal riminal law that touches on the subject of bigamy, I'm not sure what you mean by "prosecuted via the federal government", unless there is some kind of "crossing state lines to avoid proseution" situation with which I'm not all that familiar.

What you say about one state not having jurisdition to prosecute an act occurring in another state (a la your Las Vegas example) is true, but it may not be germane to a bigamy situation. From a very cursory look at some materials related to the landmark 1967 Loving vs. Virginia case, it appears that under some, perhaps most state statutes, the "act of bigamy" takes place upon the contracting of a second marriage. In that situation you seem to be correct. However, in other states it is the cohabitation in that state of a couple deemed to have two recognized marriages at the same time that defines the crime. (That was the parallel situation under the Virginia miscegination in the Loving case...the interracial couple had validly married in DC, but moved to Virgina where the latter prosecuted them for the "status" of their unlawful relationship there). I don't know how the Massachusetts statute is worded, but if it is of the latter ("cohabitation status") type, then it would appear the Massachusetts COULD validly prosecute.

beergoggles | August 24, 2007 1:36 PM

By 'cohabitation status' do you mean common law marriage? If so, I don't think there are many states that actually recognize that anymore.

Don Sherfick Don Sherfick | August 25, 2007 7:53 PM

Beergoggles: Perhaps my choice of the term "cohabitation status" was not the best one; I didn't intend for it to mean the same thing as common law marriage, although it's my understanding (to my surprise, actually) that about one third of the states are listed as till recognizing common law marriages, although in some it has to have been entered into prior to a certain date in the past.

What I looked at (Wikopedia, I think) simply used the term "cohabitation". Whether or not on the one or two states said to have that form of bigamy law, it would seem that if the two people were "together" (my term, my quotation marks)in the same state, and at least one had contracted a more than one marriage recognized as valid in that state, they could be prosecuted for bigamy, regardless of where the relevant marriages had been contracted. Maybe going a step further either one of them being in the state, or both being in the state but not "together" could trigger the offense, but I think that's beyond my pay grade at the moment!

Please, feel free to E-Mail me at the address shown for me in the Contributors section, and we can continue this particular conversation. I suspect that most everybody else may have moved on.