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February 23, 2011 10:25 PM UTC

Obama's DOMA Decision Affects Colorado

  • 11 Comments
  • by: ohwilleke

(Suthers loses his cover – promoted by Colorado Pols)

President Obama has decided to direct the Justice Department to stop defending Section 3 of the Defense of Marriage Act against challenges in federal courts, challenges in which Republican Colorado Attorney General John Suthers has controversially filed an amicus brief on behalf of the state defending the law despite the fact that Section 3 applies to the rights of same sex marriage couples only with respect to the federal government.

Before this, there was a symbolic difference, but no practical difference, between a civil unions bill, like one being considered in Colorado’s General Assembly this sesion (SB 11-172), and a same sex marriage bill (which Colorado’s constitution currently prohibits at Article II, Section 31: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” added by Initiative in the 2006 election).  Now, legally married same sex couples will have far more rights under federal law that same sex couples with civil unions (at least until they are legally married in a state that grants same sex marriages to non-residents).

Learning a lesson from the decision of California’s leaders in the Prop 8 litigation, where the state refused to appeal a trial court finding that Prop 8 was unconstitutional (the standing of the ballot measure proponents to appeal in that case has been certified to the California Supreme Court), President Obama has directed the Department of Justice to stop defending the constitutionality of Section 3 of the Defense of Marriage Act. The Justice Department has said:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman: . . . The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. . . . [T]he Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ‘ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. . . .

Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Section 3 of the Defense of Marriage Act states that the federal government, when applying federal law, shall disregard legal state law marriages that are not between one man and one woman.

The key parts of the Defense of Marriage Act state that:

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of “marriage” and “spouse”:

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.

The decision does not by itself affect Section 2 of the Defense of Marriage Act which provides that the full faith and credit clause of the United States Constitution does not extend to same sex marriages. Thus, state, local, territorial and Indian tribe governments are not federally required to honor same sex marriages that are valid in other states.

Will President Obama’s Position Be Sustained In the Courts?

President Obama’s decision is likely to stick. Generally, the only parties with standing to participate in a case where a same sex couple alleges that their rights have been violated by Section 3 of DOMA are the federal government and the couple(s) bringing the lawsuit. The U.S. Supreme Court, particularly in recent years, has construed taxpayer standing (alleging the federal funds are used for an unconstitutional purpose) and citizen standing (alleging that the federal government is acting unconstitutionally) very narrowly.

I’ll have to look later at the standing of members of Congress to speak for the federal government in litigation or intervene in lawsuits attacking the constitutionality of a statute. The general rule is that the Justice Department is the sole representative of the U.S. position. But, federal courts have the authority, although not necessarily the obligation, to appoint a lawyer to argue for a position like that constitutionality of a law or the rights of pro se parties, that is not represented by a party in court.

To speak for Congress, per se, or even one house of Congress, would ordinarily require the passage of a resolution by Congress or at least a house of Congress. But, members of Congress who sponsored or voted for legislation might be viewed by a court as suitable intervenors to argue to a court for a position that no party to the suit is willing to advance.

On balance, it seems unlikely that Congressional advocacy will cause a Court to rule in favor of the Constitutionality of Section 3 of DOMA when the Justice Department and legally married same sex couples are both parties in the case and arguing that it is unconstitutional.

An IRS ruling last year holding that domestic partners in California were entiteld to split income for federal income tax purposes due to community property principles foreshadowed the changing position of the Obama administration on this issue.

Consequences

From a practical perspective, some of the main consequences of the decision are that gay married couples can file tax returns with married filing jointly status (and receive all of the benefits of married couples for estate taxation purposes), that same sex married couples qualify for federal immigration law treatment of spouses, and that same sex married couples can receive Social Security survivors benefits and spousal Veteran’s benefits. The Veteran’s benefits issue looms large now that Congress has repealed the “Don’t Ask, Don’t Tell” law.

Also, while not quite spelled out by this ruling, the implication seems to be that a same sex couple that is legally married in any state will thereafter be treated as married by the federal government, even if the state in which they live does not recognize same sex marriage. Since some states do recognize same sex marriage (and allow non-residents to be married in their state), that means that same sex couples that go to those states to be married and then return to their home states can receive all of the federal government benefits of marriage.

Another tricky issue is the impact that the decision on Section 3 of DOMA will have on state administered programs that are funded by the federal government and governed by federal rules, such as Medicaid (where marriage matters because a spouse’s assets are relevant to eligibility for Medicaid financed nursing home care) and TANF (i.e. the main mean tested welfare program).

In addition to undermining the efforts of state governments to deny federal benefits of marriage to same sex couples in their own states, the determination also increases the stakes in the civil union v. gay marriage debate in the states. Until now, this has been a strictly symbolic debate. A civil union bill that creates as the legal rights and responsibilities of marriage under state law, but doesn’t call it marriage (such as one pending in the Colorado General Assembly right now) would not constitute marriage under federal law, while one that calls the relationship marriage would have that effect.

Thus, states are left with multiple options including: (1) disallow both civil unions and same sex marriages, but acknowledge that couples with legal sex sex marriages from other states may receive federal treatment as married, (2) allow civil unions but not same sex marriage, which gives copules state law marriage rights but denies couples federal treatment as married until they get legally married in another state, or (3) allow same sex marriage.

Also, while Section 2 of DOMA does not require states to recognize same sex marriages from other states, it also does not prohibit them from doing so out of comity. In many states, the issue of when comity should recognize other state’s legal acts when the full faith and credit clause of the United States Constitution does not require it has been left to the courts rather than being made a subject of legislation. Thus, judges could choose, influenced but not bound by the Section 3 of DOMA interpretation, to honor out of state same sex marriage even though the constitution and federal law do not require them to do so.

Civil unions have been a sensible legislative objective for same sex couples in many states, like Colorado, where the state constitution has been amended to prohibit same sex marriage, but not more broadly to prohibit civil unions or domestic partnerships of same sex couples as well. But, there will be increasing pressure to actually call this marriage legislatively, and as courts evaluate the issue.

Comments

11 thoughts on “Obama’s DOMA Decision Affects Colorado

  1. Thanks for doing this, ohwilleke.  This is the most comprehensive, easiest-to-read account of what might happen that I’ve read.

    This is an important first step on what continues to be a long road.  Psychologically and emotionally, it evens things out and truly pushes the matter into states rights territory at least until the Supremes sing.  Those who want to protect opposite sex marriage can do so, while continuing to deny their gay citizens important rights.

    It also promotes a sense of inevitability and, short-term, gives additional credence to the efforts of pending civil unions legislation like that of Colorado or pending full marriage equality laws like Maryland’s.

    It’s interesting to see what a shift there’s been since Bush/Rove made same sex marriage an issue.  A lot will now be made of the political implications of a nod to the base or riling up the right this close to an election.  But, there’s never a bad time to do the right thing and I hope a lot of America will feel the same way.

  2. I take issue with the first part of your Conclusions, though – this is an Executive decision affecting only the DOJ.  Obama’s statement says that the Executive will continue to enforce DOMA until told not to by the Courts.

    So unless and until the current court rulings against DOMA are not stayed (and I believe they are stayed at present), my reading on this is that the Obama Administration will continue to deny same-sex filers filing jointly, and deny equal treatment of same-sex couples for the state benefits at issue in the Massachusetts cases.

    Am I reading that right?

    1. “this is an Executive decision affecting only the DOJ”

      You are correct.  My statements going beyond that presume, less explicitly than they might, that DOMA will be found unconstitutional by the federal courts as a result of this step and look at what those rulings will imply.

      They are conjecture about what might happen, rather than what has happened at this moment, but this conjecture is hardly idle and seems very likely to come to pass.

  3. A couple of legislatures will vie to go down in the history books as the last one to withhold this civil right, but civil unions and then gay marriage is going to become the law in state after state.

    And it’s about damn time.

  4. I think the repeal of DADT is driving this.  Obama on his own has not shown any predilection towards equality for LGBT people. He has used a few “treats” to keep the LGBT people holding on to hope, but he has never gone out to support the community. Even within the last few weeks he has gone out of his way to state that he does not believe in marriage equality.

    This is a reversal of his previous stances.  I do think with the military forging ahead at a fast pace the integration of the forces the CiC is behind the pace.  My guess is the Pentagon is forcing this issue because of inequities in pay and benefits.  If this did not happen there would have been a big problem and all fingers would point at Obamam.

    1. Military service by blacks in the Union Army was a major force that brought President Lincoln around to making the Emancipation Proclaimation, despite the fact that he didn’t start out as an abolishionist.  Military service was also important in driving political support for the civil rights movement in the 1960s.

    2. The President is doing exactly what we elected him to do…he’s leading the country, the entire country, towards accepting equal rights for lgbt. Had Obama come to the podium in the first year of his term and announced that through Executive Order he was giving lgbt everything they wanted, there would have been an enormous backlash all across the country. Instead, by seeming to waffle Obama can slowly, incrementally convince other wafflers to follow his lead. By the time he leaves office, President Obama will have done more for the lgbt community than any president ever has. Maybe not as fast as some in the community would have liked, but he is doing it without jeopardizing popular support for those lgbt rights. He is using political strategy in conjunction with the DoJ, the DoD, and Congress.

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