Friday, March 29, 2013


The Defense of Marriage Act is at the heart of the arguments before the Supreme Court on one of the two suits having to do with who may be married to whom.
by Charlie Leck

The Defense of Marriage Act (DOMA) was passed by the Congress in September of 1996. It was signed by President William Jefferson Clinton on September 21 of that same year. Section 3 of the law deals with the non-recognition of same-sex marriages for all the purposes of the federal government (including things like the filing of joint federal tax returns, the benefits of government employees, Social Security survivor benefits, and immigration status. Former President Clinton has changed his views on these matters and has urged the repeal of DOMA.

President Obama announced in 2011 that he felt section 3 of DOMA was unconstitutional. A number of federal courts have agreed with him. As President, however, he is still bound to uphold that law but wanted the Supreme Court (SCOTUS) to look at its constitutionality. The Republican leadership of the House of Representatives instructed its House General Counsel to defend the law before SCOTUS.

The federal courts that determined Section 3 of DOMA to be unconstitutional did so on the basis of issues like bankruptcy, public employee benefits, estate taxes and immigration in matters of same-sex marriages that we legally recognized by a number of states.

SCOTUS heard arguments about this matter on Wednesday of this week. The justices will now hold conferences and conversations about the matter and will announce a decision about the constitutionality of Section 3 sometime in the late summer or early autumn. If they feel this is a critical and vital matter, they could rule earlier.

DOMA essentially established a definition for marriage (as far as the federal government is concerned) as a union between a man and a woman.

Nine (9) states in America recognize same-sex marriages.

From this you can see that the decision by SCOTUS on this matter is extremely important to many people – especially to those same-sex couples that are legally married according to the laws of the state in which they were married.

The four liberal justices on the Supreme Court (Kagan, Ginsburg, Sotomayor and Breyer) will likely vote to declare Section 3 unconstitutional. The four conservative justices (Roberts, Scalia, Thomas and Alito) will likely uphold its constitutionality. That puts the matter in the hands and mind of 78 year old Associate Justice Anthony M. Kennedy. Kennedy was nominated to serve on SCOTUS by President Ronald Reagan. He was approved by Congress and took his seat in February of 1988.

At one point on Wednesday in response to the conservative justices who seemed to be building an argument that no injury by the law had been proven and therefore it would be difficult to call in unconstitutional, Justice Kennedy was blunt in his disagreement.

“It seems to me,” he said, “there’s injury here.”

A bit later, Kennedy turned to the question of Section 3’s interference with states’ rights: “You are at real risk of running in conflict with what has always been thought to be the essence of state police power, which is to regulate marriage, divorce, custody.”

Kennedy also described what he referred to as a “DOMA problem” when he said: “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.”

Now, all of this makes me hopeful that the majority of SCOTUS will vote against section 3 and, essentially, nullify it as law; however, I have had my hopes thus raised a number of times in the past, only to be disappointed. So, that just means we will have to wait and see. I do believe, however, that Las Vegas is give strong odds that favor saying goodbye to DOMA.

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