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.
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