Same-sex marriage and the next DOMA battle


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.