Defense of Marriage Challenges

Marriage is being vigorously challenged on the federal level, not simply based on California legislation, but the Defense of Marriage Act (DOMA) is under federal litigation challenges right now from several angles.

"The 1996 federal Defense of Marriage Act, which defines marriage as a union between a man and a woman, is being challenged in two cases before the 1st U.S. Circuit Court of Appeals. The law also prevents the federal government from recognizing same-sex marriages.

In arguments to the court, Paul Clement, a lawyer for the Bipartisan Legal Advisory Group, defended the law, saying Congress had a rational basis for passing the law known as DOMA in 1996, when it appeared Hawaii would become the first state in the nation to legalize gay marriage and opponents worried that other states would be forced to recognize such marriages [based on full faith and credit requirements of the United State Constitution]. Clement said Congress wanted to preserve a traditional and uniform definition of marriage. He also argued that Congress has the power to define the terms used in federal statutes to distribute federal benefits."

Read the entire article at http://www.google.com/hostednews/ap/article/ALeqM5gcTcwv3FBPVifLVYzqAIPbEBIbwA?docId=8bb7de4d33014c328db31c420058d8cf. Federal rulings on marriage law prevail over state laws under the supremacy doctrine, but states generally have authority to determine their own domestic relations law being on the most local level to families. This is why DOMA has worked well, despite previous challenges, allowing each state to order its own marriage law without federal intervention.

Another lawsuit, filed in the US District Court for the Eastern District of New York considers whether a foreign-born partner may obtain immigration rights and a pathway to citizenship in a same sex union with a U.S. citizen. The lawsuit alleges that under DOMA, the federal government will not grant the foreign-born partner the same path to citizenship that a heterosexual foreign national would receive, amounting to unconstitutional discrimination. The petition of Blesch v. Holder states:

In each couple [in the lawsuit], one spouse is an American citizen and the other spouse a foreign national. If they were different-sex couples, the federal government would recognize the American spouse to petition for an immigrant visa for the foreign spouse and place the foreign spouse on the path to lawful permanent residence and citizenship. Solely because of DOMA and its unconstitutional discrimination against same-sex couples, however, these Plaintiffs are being denied the immigration rights afforded to other similarly situated bi-national couples.

It is unclear when this case will be heard. Read the entire article from the Jurist here at

DOMA has been a subject of great controversy recently. Last week, the Jurist reported that the Obama administration sought expedited review from the US Court of Appeals for the Ninth Circuit for two test cases challenging DOMA's constitutionality. In February, the Jurist reported that a group of US lawmakers planned to appeal the trial court ruling that DOMA unconstitutionally discriminated against same-sex couples. In November, the Senate Judiciary Committee reportedly voted to repeal DOMA, marking the first time a Congressional group has voted to repeal the law banning federal recognition of same-sex marriage. Another Congressional group seeks to defend DOMA.

Veterans Affairs has been a targeted context for marriage as well. In October, a disabled Navy veteran filed a notice of appeal with the Court of Appeals for Veterans Claims for denying her partner a share of her disability benefits under DOMA. The Department of Veterans Affairs allegedly told the veteran she could not receive benefits because her spouse was a woman, presenting a defect in the legal marriage of the two women.

You can read the en banc petition made by the Obama Administration submitted in the Ninth Circuit here, arguing that DOMA's legislative history reveals that its provision recognizing marriage as between one man and one woman "was motivated in part by animus towards gay and lesbian people."

Marriage is under serious attack from several angles on the federal level, and how these challenges play out will have an effect on the meaning and definition of marriage not only for the nation, but for every state's domestic relations law as well.

1 comment:

  1. Family Planning in Oxnard, CA
    Amazing how simple it can be to communicate with people and have them understand a certain topic, you made my day.