Section 3 of DOMA Struck Down by U.S. Supreme Court

The U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”), which defined marriage as “a legal union between one man and one woman”, as it relates to any act of Congress or any federal rule, regulation or administrative decisions.

In rendering its decision, the Supreme Court declared Section 3 of DOMA to be “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment” of the U.S. Constitution. The Fifth Amendment states that “no person shall be… deprived of life, liberty, or property, without due process of law”.

As a result of the Supreme Court’s ruling, same-sex spouses will now have all the same federal rights (and obligations) as different sex spouses in states where same-sex marriage is legal. While this victory is certainly substantial, it is not yet complete. Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed in other states where such marriage is legal, was not at issue in the Court’s case and still remains valid law.

Section 2 states that “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.”

As a result of Section 2 of DOMA, states which do not recognize same-sex marriages may refuse to grant divorces to same-sex spouses who were married in another state and subsequently moved to the non-recognizing state. They may also deny those same-sex spouses relief that is customarily granted to different sex spouses who are granted a divorce in that state, such as a fair distribution of the marital property.

On its face, Section 2 appears to contradict the full faith and credit clause of the U.S. Constitution. The full faith and credit clause states that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

It remains to be seen whether a future challenge to Section 2 of DOMA, based upon the full faith and credit clause, will be successful. We can only look to the history of the U.S. Supreme Court for guidance as to what it may do in the future. Prior to the Supreme Court’s decision in 1967, which struck down all laws banning interracial marriage, the full faith and credit clause was never used to force a state to recognize an interracial marriage from another state. However, the Full Faith and Credit Clause has been applied in various family law matters, including the enforcement of orders of protection and child support obligations.

Currently, thirty-nine states have either laws or constitutional amendments which define marriage as a legal union between one man and one woman. Some states explicitly prohibit the state from honoring same-sex marriages performed in other states. Section 2 of DOMA has already been challenged in several states which do not recognize same-sex marriages, with mixed and inconclusive results.

For example, a federal appeals court in 2007 ordered the state of Oklahoma to issue a revised birth certificate showing the names of adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere. However, in a similar case, a federal appeals court in 2011 upheld Louisiana’s refusal to issue an amended birth certificate showing the names of adoptive parents to a child born in Louisiana and adopted by a same-sex couple in New York. The U.S. Supreme Court refused to hear that case on appeal.

The state court of Texas has also reached mixed and inconclusive results regarding Section 2 of DOMA. An appellate court in Dallas in 2009 reversed a lower court’s ruling granting a divorce to a same-sex couple married in Massachusetts. However, in a similar case, an appellate court in Austin in 2011 upheld a lower court’s ruling granting a divorce to a same-sex couple married in Massachusetts. Both of those cases are now before the Texas Supreme Court.

In its recent decision declaring Section 3 of DOMA to be unconstitutional, the U.S. Supreme Court set forth two competing principles, which may provide further guidance on how the Court may treat any future challenge to Section 2 of DOMA.

The first such principle stated by the Court is that “Subject to certain constitutional guarantees…regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States” and “The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning…when the Constitution…adopted the common understanding…that the domestic relations of husband and wife and parent and child were matters reserved to the States.”

The second such principle is that “no person shall be… deprived of life, liberty, or property, without due process of law” and that the practice of the Federal Government in denying same-sex couples the right to marry is an “unconstitutional…deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

The Court attempts to reconcile these two competing principles in stating that “[New York] State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense report. But the Federal Government uses the state-defined class for the opposite purpose – to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike, the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

Thus, when the rights of same-sex couples to marry are granted by a particular state, such as New York, any restrictions imposed by the Federal Government on that right will necessarily result in injury and indignity and a deprivation of the fundamental right to liberty protected by the Fifth Amendment.

This reasoning raises several interesting questions which the Court has so far avoided.

• When the rights of same-sex couples to marry are denied by a particular state, is that particular state’s refusal to deny full faith and credit to same-sex marriages performed in other states causing injury and indignity?
• If a particular state, by its own laws or constitution, is legally permitted to deny same-sex couples the right to marry, does this then cause a deprivation of the fundamental right to liberty protected by the Fifth Amendment?

Ultimately, the Court will have to decide these compelling questions. The Court cannot simply state that the right to marry is a fundamental right to liberty protected by the Fifth Amendment, but only in states where same-sex marriage is legal, while at the same time declaring that the Court may not interfere with a particular state’s right to deny this fundamental right protected by the Fifth Amendment where same-sex marriage is illegal, because domestic relations is the province of the state.

The Supreme Court may one day render the kind of sweeping decision it did in 1967 when it struck down all laws banning interracial marriages. In its decision, it may conclude that there are “certain constitutional guarantees” permitting it to regulate certain kinds of domestic relations, such as orders of protection, child support matters, and marriage equality. Therefore, no state may be permitted to deny same-sex couples the fundamental right to liberty guaranteed by the Fifth Amendment.