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Frequently Asked Questions

Why BLAG's Arguments Defending DOMA Won't Work

Updated April 30, 2012

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Why is DOMA Unconstitutional?

Section 3 of the “Defense of Marriage Act” violates the constitutional guarantee of equal protection by requiring the federal government to deny recognition of the existing legal marriages of same-sex couples. Equal protection promises that likes are to be treated alike, but DOMA treats married same-sex couples as unmarried for purposes of all 1,138 federal laws in which marital status is a factor.

Isn’t this just a policy spat that belongs to the Congress?

No. Telling people to go back to the very entity that discriminated against them rather than the courts could be an answer to every constitutional violation. In our system of checks and balances, the courts must say when laws are invalid.

DOMA is legally mandated discrimination against gay people and same-sex couples that is causing harm now. In addition to denying federal marital legal protections and obligations to married same-sex couples, DOMA is de jure discrimination that injures all gay and lesbian people by inviting disrespect by states and private parties.

Congress has been awakening to the harms caused by DOMA. The “Respect for Marriage Act,” pending in both the U.S. House and Senate, would repeal DOMA. It is essential to advocate for repeal and get the Congress on record while also recognizing that the prospects for repeal are distant.

But why can’t Congress define its own terms for federal law?

This is a red herring. Let’s assume that Congress can define “marriage” (even though only states can marry people and Congress has always deferred to state status determinations).The equal protection issue targets how “marriage” is defined. What legitimate and independent federal interest is rationally served by denying respect only to marriages of same-sex couples? Why is a spouse’s sexual orientation relevant to the federal government given that marital benefits and burdens are allocated based on marital status and nothing more? If Congress defined “person” to be only “female” or “Caucasian,” we would all recognize that Congress would need to justify such a restrictive definition.

Is this case about a constitutional “right to benefits?”

No. We say that as long as the federal government uses “marriage” and “spouse” as a basis for extending benefits or burdens, then the federal government needs a basis for discriminating between identically married people. If DOMA did not exist, lawfully married same-sex couples would be subject to the same benefits and burdens as other married persons. DOMA was designed to prevent that inclusion and create an exclusion.

Is DOMA really so unusual? Don’t immigration laws ignore state law, too?

DOMA is unique in denying the existence of a class of marriages for purposes of all federal laws. Immigration laws, like many other laws, accept the state’s marital status determination, and then apply additional eligibility criteria. If a person is validly married in a state, but cannot also show that the marriage was bona fide (i.e., not entered into for purposes of securing immigration benefits), then the person is denied immigration benefits. Many federal laws include such “plus” factors. Social security survivor benefits, for example, require a valid marriage plus a minimum age and length of marriage.

Where marriage was between a man and a woman only for so long, why couldn’t Congress just pass a law to preserve the assumptions it made in previous laws?

Translated, this means Congress wanted to maintain a tradition of different-sex marriage even though state marriage laws were changing. The existence of a tradition does not provide an independent and legitimate basis for adhering to that tradition.

Also as to “assumptions,” remember that for more than 200 years, Congress neutrally deferred to the states, meaning it deferred to a patchwork of laws that differed as to eligibility based on race, closeness of relations, public health issues, ceremonial requirements (common law marriage) and recognizing divorces. It is only now through DOMA that Congress claims an “interest” in the substantive definition of marriage used by states. Any such interest fails,as discussed below.

What is your basis for saying there is no legitimate federal interest for DOMA?

Rational basis review requires that a classification must bear a rational relationship to an independent and legitimate legislative end. The means (the classification) and ends (the goal) must be separate and distinct to ensure classifications are not drawn for the purpose of disadvantaging the group burdened by a law.

Many of the (invented) justifications for DOMA repeat what DOMA does but not a reason for doing it, or doing it only for married gay people. DOMA’s discrimination is re-labeled as uniformity or consistency, for example, or saving money or administrative ease, but only with respect to gay people’s marriages. Take uniformity: treating all gay people uniformly as unmarried doesn’t explain why only married gay people are, among all married people, treated as unmarried. Doing so also creates disuniformity within the class of married persons. Take the public fisc: Congress could save money by denying the validity of marriages of redheads, too. But rational review requires a principled basis for recognizing the marriages of some but not others. The same analysis applies to all of the claimed justifications.

Other justifications (pause while states debate, act cautiously, maintain the status quo) are only a means to an end but not an end in themselves. Sometimes the government can hold back while some other problem is addressed, but more people exercising their right to marry is neither a problem, nor anything new. DOMA is not cautious – it is both a complete ban and unlimited in time - and it upended the status quo at the federal level of deferring to state marital status determinations.

Lastly, the family law justifications about DOMA promoting “responsible procreation” and “optimal parenting” don’t rationally relate to DOMA at all. DOMA provides nothing to encourage heterosexuals to marry or have children in a marriage. It only harms same-sex couples who are already married and any children they have or may have in the future.

Members of the media can call Carisa Cunningham at (617) 426-1350, or email .(JavaScript must be enabled to view this email address).

April 30, 2012