The Supreme Court's rulings on the Defense of Marriage Act (DOMA) and on Proposition 8
Before discussing the ruling of SCOTUS (Supreme Court of the United States) on DOMA, it's necessary to understand what DOMA did, when it was signed into law by President Clinton 1996. It has three sections. Section 1 merely gives authority to cite the law as the 'Defense of Marriage Act'
Section 2 says that any state, territory or possession of the U.S., or any Indian tribe, is NOT required to recognize a legal same-sex marriage performed in any other state, territory, possession or by any Indian tribe.
Section 3 says the government of the United States defines "marriage" to mean only a legal union between a man and a woman, as husband and wife; and that the word "spouse" refers only to persons who are the husband or wife to a member of the opposite sex.
What SCOTUS did today was issue a ruling that says Section 3 is unconstitutional. The court held that Section 3 violates the "equal liberty" provision of the Fifth Amendment.
SCOTUS did not address the constitutionality of Section 2, which was not being challenged in the case being heard. That case was brought by a woman, Edith Windsor, whose wife had died. They had been legally married in Ontario, Canada in 2007 after 40 years together. In 2009, her wife died and at that time, the state of New York (where they lived until the wife's death) recognized same-sex unions performed in other jurisdictions.
Ms Windsor was billed for more than $363,000 in federal income tax because she did not qualify for the spousal exception to the inheritance tax (which is unlimited). She sued. Now she has won.
So what does this mean for everyone else? Until now, over 1,100 benefits at the federal level were denied to same-sex couples who married legally. Social Security, dependent health insurance for federal employees, equality of treatment under the federal income tax code and many more. Because of this ruling, those benefits will now be available to same-sex couples. If a federal employee wants to put their same-sex spouse on their health insurance plan, they can now do so.
Does this mean that all employers will have to do that? No. The ruling is limited to federal benefits and has no impact on benefits provided by non-government entities.
There will be 12 states, plus the District of Columbia that recognize same-sex marriage once all current legislation goes into effect. That means 38 states do not recognize same-sex marriage and it is illegal within their borders. Will these 38 states now have to recognize same-sex marriages performed in other states? No. Section 2 of DOMA remains in force.
DOMA isn't dead, in spite of the media's statements that it is. It is alive and well in Section 2. Two men who were legally married to one another in Massachusetts and who now live in Dallas wanted a divorce. The Texas courts ruled they cannot legally divorce in Texas, because their marriage is not recognized by the state. Today's ruling by SCOTUS won't change things for them one bit.
If an Arizona same-sex couple comes to California to legally marry, Arizona will not recognize their union. Our work involving getting DOMA completely overturned is not done yet.
* * *
SCOTUS actually did NOT rule that California's Proposition 8 is unconstitutional. It ruled that those who were seeking to have the lower court decision that ruled it unconstitutional overturned, did not have standing to appeal that lower court's decision.
Jerry Brown was then the CA Attorney General and when the lawsuit that SCOTUS ruled on today was filed, he refused to defend Prop 8. The official sponsor of the proposition, ProtectMarriage.com moved to intervene and defend Prop 8. The judge allowed them to do so.
Now SCOTUS has held that this was not proper. In doing so, they have effectively ended the attempts to keep Prop 8 alive and since Governor Brown and CA Attorney General Kamala Harris will not attempt to protect this proposiiton, it is dead. It will take a few weeks for paperwork to flow, but sometime in late July, the 9th Circuit Court will vacate the stay they had issued to keep Prop 8 in force, and then same-sex marriage licenses will become available immediately afterward.
* * *
Was SCOTUS right in making these rulings? They could not have been more divided, both decisions coming on 5-4 votes. The dissents by the minority on the court were scathing indictments of the majority opinion in each case.
I'm not a lawyer and I don't play one on television. But I agree with both of these rulings. If we were all created equal, and we are all entitled to equal liberty and equal protection under the Constitution, the right to marry someone of the same sex must be recognized. Now if you want to eliminate all marriages performed by government and outside of organized religion; and call them all civil unions, go ahead. States are free to do this. Organized religions can conduct "marriage" ceremonies that states can recognize as fulfilling the requirement to codify a civil union via ceremony.
The real issue in that case is equality of treament. If someone marries a member of the opposite sex and gets all of the benefits afforded under federal law, someone who marries a member of the same sex is being discriminated against if they are not afforded those same benefits.
As for Prop 8, the majority that narrowly passed that moronic measure into law no longer exists here. Were it not for the influence of religious zealots from outside the state, it would have never passed in the first place.
* * *
Just remember, the work is not done yet. Section 2 of DOMA has to go before we achieve real equality in this area when it comes to benefits and recognition of same-sex marriages. Let's roll.
Section 2 says that any state, territory or possession of the U.S., or any Indian tribe, is NOT required to recognize a legal same-sex marriage performed in any other state, territory, possession or by any Indian tribe.
Section 3 says the government of the United States defines "marriage" to mean only a legal union between a man and a woman, as husband and wife; and that the word "spouse" refers only to persons who are the husband or wife to a member of the opposite sex.
What SCOTUS did today was issue a ruling that says Section 3 is unconstitutional. The court held that Section 3 violates the "equal liberty" provision of the Fifth Amendment.
SCOTUS did not address the constitutionality of Section 2, which was not being challenged in the case being heard. That case was brought by a woman, Edith Windsor, whose wife had died. They had been legally married in Ontario, Canada in 2007 after 40 years together. In 2009, her wife died and at that time, the state of New York (where they lived until the wife's death) recognized same-sex unions performed in other jurisdictions.
Ms Windsor was billed for more than $363,000 in federal income tax because she did not qualify for the spousal exception to the inheritance tax (which is unlimited). She sued. Now she has won.
So what does this mean for everyone else? Until now, over 1,100 benefits at the federal level were denied to same-sex couples who married legally. Social Security, dependent health insurance for federal employees, equality of treatment under the federal income tax code and many more. Because of this ruling, those benefits will now be available to same-sex couples. If a federal employee wants to put their same-sex spouse on their health insurance plan, they can now do so.
Does this mean that all employers will have to do that? No. The ruling is limited to federal benefits and has no impact on benefits provided by non-government entities.
There will be 12 states, plus the District of Columbia that recognize same-sex marriage once all current legislation goes into effect. That means 38 states do not recognize same-sex marriage and it is illegal within their borders. Will these 38 states now have to recognize same-sex marriages performed in other states? No. Section 2 of DOMA remains in force.
DOMA isn't dead, in spite of the media's statements that it is. It is alive and well in Section 2. Two men who were legally married to one another in Massachusetts and who now live in Dallas wanted a divorce. The Texas courts ruled they cannot legally divorce in Texas, because their marriage is not recognized by the state. Today's ruling by SCOTUS won't change things for them one bit.
If an Arizona same-sex couple comes to California to legally marry, Arizona will not recognize their union. Our work involving getting DOMA completely overturned is not done yet.
* * *
SCOTUS actually did NOT rule that California's Proposition 8 is unconstitutional. It ruled that those who were seeking to have the lower court decision that ruled it unconstitutional overturned, did not have standing to appeal that lower court's decision.
Jerry Brown was then the CA Attorney General and when the lawsuit that SCOTUS ruled on today was filed, he refused to defend Prop 8. The official sponsor of the proposition, ProtectMarriage.com moved to intervene and defend Prop 8. The judge allowed them to do so.
Now SCOTUS has held that this was not proper. In doing so, they have effectively ended the attempts to keep Prop 8 alive and since Governor Brown and CA Attorney General Kamala Harris will not attempt to protect this proposiiton, it is dead. It will take a few weeks for paperwork to flow, but sometime in late July, the 9th Circuit Court will vacate the stay they had issued to keep Prop 8 in force, and then same-sex marriage licenses will become available immediately afterward.
* * *
Was SCOTUS right in making these rulings? They could not have been more divided, both decisions coming on 5-4 votes. The dissents by the minority on the court were scathing indictments of the majority opinion in each case.
I'm not a lawyer and I don't play one on television. But I agree with both of these rulings. If we were all created equal, and we are all entitled to equal liberty and equal protection under the Constitution, the right to marry someone of the same sex must be recognized. Now if you want to eliminate all marriages performed by government and outside of organized religion; and call them all civil unions, go ahead. States are free to do this. Organized religions can conduct "marriage" ceremonies that states can recognize as fulfilling the requirement to codify a civil union via ceremony.
The real issue in that case is equality of treament. If someone marries a member of the opposite sex and gets all of the benefits afforded under federal law, someone who marries a member of the same sex is being discriminated against if they are not afforded those same benefits.
As for Prop 8, the majority that narrowly passed that moronic measure into law no longer exists here. Were it not for the influence of religious zealots from outside the state, it would have never passed in the first place.
* * *
Just remember, the work is not done yet. Section 2 of DOMA has to go before we achieve real equality in this area when it comes to benefits and recognition of same-sex marriages. Let's roll.
posted by me at 2:58 PM
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