Greater Cincinnati Gay Chamber

Federal DOMA (part one)

by Ed Mullen, Executive Director - Equality Ohio

While the march toward equal marriage rights for same sex couples has moved forward in states like Iowa and Massachusetts, opponents of equal marriage rights have succeeded in passing federal legislation (the “Defense of Marriage Act” or “DOMA”) and state legislation and/or constitutional amendments to ban or limit legal recognition of same sex relationships. These competing legal movements have created a patchwork of different laws around the country, and recent court decisions have only created more uncertainty and confusion.  This article attempts to briefly summarize the state of the law federally and in Ohio.

 

 

Federal DOMA

The federal DOMA was enacted in 1996 at a time when Hawaii and other states were considering granting equal marriage rights to same sex couples.  DOMA’s two operative sections (2 and 3) affected state and federal recognition of same sex marriage.  Section 2 permits states to ignore marriages performed in other states, as well as judicial orders from other states that involved recognition of same sex marriages (e.g., custody, alimony).  Section 3 prevented the federal government from recognizing the validity of same sex marriages for federal purposes such as Social Security and federal taxes.  

 

Both Sections 2 and 3 of DOMA raise serious Constitutional issues. Section 2 potentially violates the Full Faith and Credit Clause in Article IV, Section 1 of the U.S. Constitution.  That clause requires states to recognize the “public Acts, Records, and judicial Proceedings” of other states.  Although Congress has the authority to legislate on full faith and credit issues, DOMA raises the question of whether it can exclude same sex marriages from the acts a state must recognize.

 

Section 3 raises questions concerning equal protection (under the Due Process Clause of the Fifth Amendment) and states’ rights (under the Tenth Amendment).  One federal court has held that Section 3 of DOMA violates both equal protection and states’ rights.  

Massachusetts v. United States Dep’t of Health and Human Services.

There are a number of other cases challenging DOMA pending in federal courts that have not yet been decided by the trial court.  

Article Continues, click here 

 

Ohio DOMA

Ohio’s “DOMA” by Ed Mullen - Executive Director, Equality Ohio

 

In 2004, Ohio passed legislation also entitled the Defense of Marriage Act.  This law provided that: (1) marriage was only between one man and one woman; (2) no same sex marriage, even if entered into in a state where same sex marriage is legal, would be valid in Ohio; and (3) the benefits of marriage shall not be extended to same sex couples.

 

Not satisfied with a statewide DOMA law, opponents of equal marriage rights in Ohio (as well as those who thought having such a divisive social issue on the ballot would drive up conservative turnout for the 2004 Presidential election) placed a proposed amendment to the Ohio Constitution on the ballot in 2004.  This amendment, which passed by a margin of 62%-38%, recognizes marriage as only a union between one man and one woman, and provides that neither the state nor counties can give legal status to unmarried individuals whose relationships are intended to approximate the design or effect of marriage.

 

Accordingly, there is no right for same sex couples in Ohio to be married or to enter into civil unions.  In addition, Ohio does not recognize same sex marriages or civil unions performed in state where they are legal.  Several cities, counties and state universities have passed or implemented certain rights for all unmarried couples, such as domestic partner registries and domestic partner benefits.  These laws, however, cover a small minority of Ohio’s population.

 

Equality Ohio is working to change the hearts and minds of folks throughout Ohio on equal marriage rights and expand the support for our relationships and our families.  We are also working throughout the state to expand the legal rights of LGBT people and families within the current legal framework.  Finally, we are working to lay the groundwork for not only repeal of the anti-marriage constitutional amendment and state law, but also enactment of full marriage rights for same sex couples.  For more information, please contact us at info@equalityohio.org

Federal DOMA

CONTINUED (click here to read the first portion of this article)

What is DOMA? 

by Ed Mullen, Executive Director of Equality Ohio

The United States Department of Justice is charged with defending the constitutionality of federal laws.  But on February 23, 2011, Attorney General Eric Holder issued a memorandum concluding that Section 3 of DOMA is not constitutional, and as such, President Barack Obama instructed the Justice Department to cease defending it.

 

After the Justice Department decided not to defend the constitutionality of Section 3 of DOMA, the leadership of the House of Representatives (led by Ohioan Speaker of the House John Boehner) decided that the House would take on defending Section 3 of DOMA, and it has hired a private attorney to do so.  The trial court’s decision that Section 3 of DOMA is unconstitutional is now on appeal in the federal circuit court of appeals.  Any ruling may be appealed to the U.S. Supreme Court, but the Court has discretion whether or not to hear the case.  Traditionally, the Court waits until various federal appeals courts have ruled on an issue differently (known as a Circuit split) to take a case.  Therefore, the Supreme Court may not resolve this issue for many years.

 

While the issue of the constitutionality of Section 3 is being litigated actively across the country, cases challenging the constitutionality of Section 2 have not been as successful.  Several of these cases were not decided on the merits of the issue; rather, courts have either not addressed the issue in their ruling or found that the party challenging Section 2 did not have the legal standing to do so.  Accordingly, it does not appear that Section 2 of DOMA will be overturned in the near future.

 

Also of interest is a lawsuit in California relating to Proposition 8, which amended the California Constitution to take away the right to marry in California.  

Perry v. Schwarzenegger.  In that case, a federal trial court in California ruled that Proposition 8 was unconstitutional because it violated equal protection and due process provisions of the U.S. Constitution.  The Judge wrote:  “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.  Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.”  This case is on appeal and will likely reach the U.S. Supreme Court within the next several years.  Although this case does not directly address DOMA, if the Court finds that marriage discrimination violates equal protection and due process, it is difficult to see how DOMA could be found constitutional.

 

In addition to litigation developments, bills have been introduced in both the U.S. House and Senate to repeal DOMA.  President Obama has indicated that he does not support DOMA, so it is likely he would sign such a bill if it passed.  However, it is unlikely that a repeal bill will pass through the House, which has proven to be very conservative on social issues.

 

Read about OHIO DOMA here

 

Visit Equality Ohio for more information

 

 

Pride 2011 - Mark Your Calendar!

Last year was just the beginning! Pride 2011 will include your favorites:  an expanded downtown parade and street festival plus new happenings all across Greater Cincinnati!  Stay on top of the latest details by becoming a "fan" of Pride on Facebook.  You can also visit the official Equinox Cincinnati Pride website.  There you will find the latest announcements, a confirmed event schedule and complete weekend details.

 

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Planning  for Pride 2011 is still underway, but we are still seeking volunteers. If you're interested in volunteering for one of the planning committees, please email George Crawford with "Pride Planning" in the subject line"

 

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