Ok, this topic is peculating around the boards in a big way with the AG saying that they would no longer defend DOMA. There has been a ton of misinformation being passed around about that(DOMA is still enforced, and DOMA can only be declared unconstitutional by the court system, this decision does not declare DOMA unconstitutional), but that is not what I want to talk about here. It is just why I started this blog entry. What I want to do is briefly address the legal challenges to DOMA and anti-SSM laws on the state level and explain, hopefully somewhat fairly and accurately, what the challenges are. The whole thing is kinda complicated with alot of different things going on. It's easy to become confused.
There are to my mind three separate issues at play here. They all relate somewhat to one another, but are all actually separate issues. Those issues are:
1) Can states not allow same sex couples to marry?
2) Do states have to recognize same sex married couples married in another state?
3) Can the federal government not recognize as married same sex couples married under state laws?
Taking them in reverse order:
The question is being dressed most directly in the court case Gill v. Office of Personnel Management. The basis for this case was around section 3 of DOMA, which reads:
U.S. District Judge Joseph Tauro rules that section 3 failed on a rational basis test of the "equal protection principles embodied in the Fifth Amendment to the United States Constitution". He specifically did not rule on whether equal protection to gays would fall under a more strict scrutiny.
What this all means is that the defenders of DOMA(which going forward will probably be the House of Representatives) have to now explain why, at the very least, DOMA "is a reasonable means to an end that may be legitimately pursued by the government", and they will have to do this with a preponderance of the evidence. Note that since Tauro did not rule on the question of which level of scrutiny should be used, it is quite possible(even likely) that this may not be enough, and any lawyer for the defense will almost certainly want to argue why DOMA is legal under even under strict scrutiny, which would require them to show a compelling government interest, and that the law is narrowly tailored to meet that interest and that it is the least restrictive means of achieving that interest.
Also on this issue is the case Massachusetts v. United States Department of Health and Human Services, referred to as "the Coakley case" for short after the Mass. AG who argued it. This case was also ruled on by Tauro. His determination in this case was that DOMA failed constitutionality because the federal government was overstepping the 10th amendment. He rules that it has been historically true that it is up to the states to decide how they will define marriage. In reading the rulings, I am struck that Tauro, who is a conservative judge appointed by Nixon, felt most comfortable with this argument. States decide what they call marriage, and the federal government has no business calling some of those decisions better or worse as long as they do not violate the US constitution.
The other two issues are very closely linked, and while separate issues, I will address them together since they both deal with roughly the same logic. The court case that addresses this is, of course, Perry v. Schwarzenegger. Judge Walker found that marriage is a fundamental right, citing the Loving and Griswold cases. For fundamental rights, strict scrutiny is required, and that the Prop 8 law did not even meet the rational basis test, let alone strict scrutiny.
At first glance this seems to be at odds with the Coakley ruling which said that it was up to states to define marriage, but the Coakley ruling was actually that it is up to states to define marriage as long as that definition does not violate the US constitution, which Walker found it did. What this means is that if the Perry case is upheld, states would have to allow same sex couples marry, and would have to recognize such marriages made in other states. To do otherwise would violate equal protection under the constitution, which states cannot do even with issues it is up to the state to legislate.
The question in all these cases is going to come down to whether marriage is a right(if not, then it does not come under equal protection), and if so, what level of scrutiny is properly used. Since both Loving and Griswold explicitly stated that marriage is a fundamental right, I suspect that at least rational basis test will be used, and at a guess would suspect that the middle level of scrutiny, intermediate scrutiny will be rules to be proper.
There are to my mind three separate issues at play here. They all relate somewhat to one another, but are all actually separate issues. Those issues are:
1) Can states not allow same sex couples to marry?
2) Do states have to recognize same sex married couples married in another state?
3) Can the federal government not recognize as married same sex couples married under state laws?
Taking them in reverse order:
The question is being dressed most directly in the court case Gill v. Office of Personnel Management. The basis for this case was around section 3 of DOMA, which reads:
Section 3. Definition of marriage
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.
U.S. District Judge Joseph Tauro rules that section 3 failed on a rational basis test of the "equal protection principles embodied in the Fifth Amendment to the United States Constitution". He specifically did not rule on whether equal protection to gays would fall under a more strict scrutiny.
What this all means is that the defenders of DOMA(which going forward will probably be the House of Representatives) have to now explain why, at the very least, DOMA "is a reasonable means to an end that may be legitimately pursued by the government", and they will have to do this with a preponderance of the evidence. Note that since Tauro did not rule on the question of which level of scrutiny should be used, it is quite possible(even likely) that this may not be enough, and any lawyer for the defense will almost certainly want to argue why DOMA is legal under even under strict scrutiny, which would require them to show a compelling government interest, and that the law is narrowly tailored to meet that interest and that it is the least restrictive means of achieving that interest.
Also on this issue is the case Massachusetts v. United States Department of Health and Human Services, referred to as "the Coakley case" for short after the Mass. AG who argued it. This case was also ruled on by Tauro. His determination in this case was that DOMA failed constitutionality because the federal government was overstepping the 10th amendment. He rules that it has been historically true that it is up to the states to decide how they will define marriage. In reading the rulings, I am struck that Tauro, who is a conservative judge appointed by Nixon, felt most comfortable with this argument. States decide what they call marriage, and the federal government has no business calling some of those decisions better or worse as long as they do not violate the US constitution.
The other two issues are very closely linked, and while separate issues, I will address them together since they both deal with roughly the same logic. The court case that addresses this is, of course, Perry v. Schwarzenegger. Judge Walker found that marriage is a fundamental right, citing the Loving and Griswold cases. For fundamental rights, strict scrutiny is required, and that the Prop 8 law did not even meet the rational basis test, let alone strict scrutiny.
At first glance this seems to be at odds with the Coakley ruling which said that it was up to states to define marriage, but the Coakley ruling was actually that it is up to states to define marriage as long as that definition does not violate the US constitution, which Walker found it did. What this means is that if the Perry case is upheld, states would have to allow same sex couples marry, and would have to recognize such marriages made in other states. To do otherwise would violate equal protection under the constitution, which states cannot do even with issues it is up to the state to legislate.
The question in all these cases is going to come down to whether marriage is a right(if not, then it does not come under equal protection), and if so, what level of scrutiny is properly used. Since both Loving and Griswold explicitly stated that marriage is a fundamental right, I suspect that at least rational basis test will be used, and at a guess would suspect that the middle level of scrutiny, intermediate scrutiny will be rules to be proper.