The battle for state recognition of same-sex marriage
has just begun. While many might think
that the Supreme Court decision in United States v. Windsor striking
down section 3 of the Defense of Marriage Act (DOMA) represents the last
judicial word on the issue, that is far from the case. Instead, that decision has changed the legal
debate and strategy regarding same-sex marriage, and it still involves DOMA.
Imagine
this likely scenario. A same-sex couple
is legally married in Minnesota and they decide to relocate to Florida, a state
that does not presently recognize such marriages. This couple then asks Florida to recognize
their marriage with the intent of enjoying the state’s hundreds of statutory
benefits regarding adoption, devising of property, or taxes that are available
to married couples. Is the State of Florida
required to recognize this marriage?
There are powerful legal arguments to say yes, and they were only
strengthened after the Windsor decision.
Consider
first what the Windsor case was about.
It involved a challenge to section 3 of DOMA. Passed in 1996, section 3
defined marriage at the federal level as exclusively a relationship between one
man and one woman. The practical effect
was that all federal laws referring to marriage would use this definition. This meant that any state which did recognize
a same-sex marriage would not have such a union recognized under federal law. In Windsor, at issue was a surviving
member of legally married same-sex couple in Minnesota. She had inherited property from her partner
and sought to claim federal tax benefits as a couple and not as a single
person. However, DOMA prevented that and she sued, claiming she was entitled to
pay a lower tax as a surviving spouse.
Windsor challenged section 3 of DOMA as unconstitutional and the Supreme
Court agreed.
Writing
for the Court, Justice Kennedy argued first that marriage remained a state
issue. By that, states generally had the
authority under the Tenth Amendment to determine who could marry. DOMA interfered with that state prerogative.
What it did according to the Court was to single out a specific group for
discrimination or special burden that state law sought to protect. Such a singling out of a group–here same-sex
married couples–was both a violation of the Fifth Amendment’s Equal Protection
clause.
This
decision thus settled the issue of the constitutionality of section 3 of DOMA
and federal recognition of state approved same-sex marriages. Yet it did not address an equally important
topic–Section 2 of DOMA and state recognition of same-sex marriages performed
in other states.
Many
have forgotten why DOMA was originally passed.
In the early 1990s a series of court decisions in Hawaii moved that
state close to the recognition of same-sex marriage in that state. Fearing that such a decision would then
require other states to recognize these Hawaiian marriages, Congress enacted
DOMA. But the real heart of DOMA was not
section 3 but section 3. Section 2 declared: “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.” In effect, no state would have to recognize a
same-sex marriage as valid in their state even if that couple was legally
married in another state. Thus, Florida
would not have to recognize as valid a Minnesota
same-sex marriage in their state, even if that couple relocated to their state
to live.
Even before DOMA many claimed that section
2 was unconstitutional, The argument was that it violated Article IV, section
one of the Constitution–otherwise known as the Full Faith and Credit
clause. That clause states: “Full faith
and credit shall be given in each state to the public acts, records, and
judicial proceedings of every other state.” Under the Articles of
Confederation, the thirteen original states often refused to recognize legal
acts from other states, as each often discriminated against one another. In the 1942
in Williams
v. North Carolina the Supreme Court
declared the purpose of the Full Faith and Credit Clause was “to alter the
status of the several states as independent foreign sovereignties, each free to
ignore obligations created under the laws or by the judicial proceedings of the
others, and to make them integral parts of a single nation.”
What
does this clause practically mean? The
most obvious issue is marriage. Couples
legally married in one state do not have to get remarried in another state when
they move into it. Divorce proceedings
and many other court judgments and laws have to be recognized too by other
states. This is where the challenge to
section 2 of DOMA comes in.
While
Congress has authority to define how such full faith shall be proved, it is not
clear that it has the authority to limit
the scope of the Full Faith and Credit clause.
It is doubtful that Congress could pass a law permitting states to
refuse to recognize opposite-sex marriages performed in other states, or even
to allow them to refuse to recognize racially-mixed or mixed-faith
marriages. The same principle applies to
same-sex marriages. While Justice
Kennedy in Windsor did say that marriage was a state issue, the Full
Faith and Credit clause can be read as an abrogation of that state prerogative
in some instances. Moreover, given the
language of Windsor where the Court assailed the federal government
under Section 3 for singling out same-sex couples for special burdens after a
state sought to protect them, one can apply similar logic under the Fourteenth
Amendment Equal Protection clause. One
can argue that states cannot single out same-sex couples for special burdens
and treat them differently from opposite-sex couples.
This argument becomes even stronger if one brings in three other
constitutional rights or clause. First,
there is the right to interstate travel.
In Shapiro v. Thompson that individuals have a right to
interstate travel and that individual states may not interfere with such a
right. Such a right the Court ruled is
inherent in the Constitution although they chose to use the Due Process and
Equal Protection clauses to support their claim. Then in Saenz v. Roe the Supreme Court
used the Privileges and Immunities clause of the Fourteenth Amendment to again assert a right
to interstate travel. In both cases at
issue were state laws imposing durational residency requirements upon relocating individuals who wished to
collect public assistance welfare benefits.
In both cases the Supreme Court invalidated such laws as burdening these
rights. Finally, one could also argue that
the Commerce clause in implicated here.
Refusal by a state to recognize a same-sex marriage performed in another
state creates an impediment to interstate commerce. It places a burden on
same-sex couples wishing to relocate to another state for business or
employment.
So
now think about the legal status of section 2 of DOMA when it comes to a legally
married same-sex couple from Minnesota moving to Florida. One can argue first that Congress lacked the
authority under the Full Faith and Credit clause to enact section 2. States are then precluded under this clause,
as well under the Equal Protection clause from
refusing to recognize same-sex marriages performed elsewhere. These
constitutional clauses, Supreme Court interpretation of them, and the reasoning
in Windsor are enough to argue that states are not free to single out
same-sex marriages from legal recognition if performed in another state. This is perhaps the next legal battleground
on this issue.
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