DOMA: Supreme Court has yet to hear cases on the constitutionality of the Defense of Marriage Act

Prop 8 (California)[i] is the the subject of one of 10 cases presented for review by the US Supreme Court. This morning the Justices added orders from their Friday 11/30/2012 conference and the orders did not list any of the DOMA cases. Challenges to the constitutionality of the Defense of Marriage Act follow the Obama administration’s decision not to defend the Act in courts. DOMA, signed by President Clinton, on the 21st of September, 1996, defines that US Federal law defines marriage as the union of one man and one woman for federal and inter-state recognition. Under DOMA, no one state is required to recognize a same sex marriage that may be legal under another state’s laws.

Family law attorney Steven Peskind[ii] of the Peskind Law Firm in St. Charles shared his opinion on this news, "For proponents of same-sex marriage, cultural momentum seems to favor them; I'm not certain a delay in addressing this issue is such a bad thing from their perspective. As frustrating as it is, delay may improve their chances of success in the long run."

There are many family law issues arising out of DOMA.

What happens when same-sex couples marry in New York, where same-sex marriage is recognized and move to Illinois where there is no same-sex marriage, but instead civil unions are recognized? What if same-sex couples move from New York to Indiana and work in Chicago? There are varieties of complex legal issues arising out of the Defense of Marriage Act as it stands today.

Mr. Obama announced in 2011 that Section 3 of DOMA would be enforced but not defended in courts because the administration considers the law unconstitutional.[iii] Section 3 codifies the non-recognition of same-sex marriages for federal purposes such as insurance benefits for Federal employee spouses, estate taxes, and immigration, for example.

On the other side of the argument, a Republican-majority-appointed group defends the law. The Bipartisan Legal Advisory Group’s representative stated: “BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been recorded.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.””[iv]

The First and Second US Circuit Courts[v] wrote opinions finding DOMA unconstitutional.[vi] DOMA denies federal benefits to lawfully married same-sex couples. According to Wikipedia (caution of course) as of November 2012, nine states legalized same-sex marriage: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington, and the District of Columbia.[vii] Rhode Island recognizes same-sex marriages solemnized in other jurisdictions and California (See Prop 8) briefly granted same-sex marriages in 2008 and now they are recognized on an individual basis based on conditions.

DOMA and the Obama administration’s election to not defend the law in courts is a hot button political issue. How do you think the Supreme Court will handle these issues? Do you expect them to hear the DOMA cases soon? Feel free to offer your comments below and engage in dialogue.

[i] “BREAKING NEWS: Supreme Court to decide on Prop 8/DOMA cases in late November”

[ii] Steven N. Peskind is a family and divorce attorney at the Peskind Law Firm in St. Charles, Illinois.

[iii] See FN vi below

[iv] See FN vi below

[v] New York and Boston, respectively

[vi] “Defense of Marriage Act ruled unconstitutional by second appeals court”

[vii] Same-sex marriage in the United States – according to Wikipedia



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