Same-Sex Marriages: Legal Issues

Alison M. Smith
Legislative Attorney

The recognition of same-sex marriages generates debate on both the federal and state levels. Either legislatively or judicially, same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont. Other states allow civil unions or domestic partnerships, which grant all or part of the state-level rights, benefits, and/or responsibilities of marriage. Some states have statutes or constitutional amendments limiting marriage to one man and one woman. These variations raise questions concerning the validity of such unions outside the contracted jurisdiction and have bearing on the distribution of federal benefits.

Currently, federal law does not recognize same-sex marriages. The Defense of Marriage Act (DOMA), P.L. 104-199, prohibits federal recognition of same-sex marriages and allows individual states to refuse to recognize such marriages performed in other states. Section 3 of DOMA requires that marriage, for purposes of federal benefit programs, be defined as the union of one man and one woman. As federal agencies grapple with the interplay of DOMA and the distribution of federal marriage-based benefits, lower courts are beginning to address the DOMA’s constitutionality. On July 8, 2010, a U.S. District Court in Massachusetts found section 3 of DOMA unconstitutional in two companion cases (Gill v. Office of Personnel Management, 699 F.Supp. 2d 374 [D. Mass. 2010] and Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 [D. Mass. 2010]) brought by same-sex couples married in Massachusetts. At issue were a myriad of benefits. In one case, the court found that DOMA exceeded Congress’s power under the Spending Clause and violated the Tenth Amendment. In the other case, the court held that Congress’s goal of preserving the status quo did not bear a rational relationship to DOMA and thus, violated the Fifth Amendment’s Equal Protection Clause. While the government filed a notice of appeal in these cases, it is unclear whether the cases will continue. On February 23, 2011, the U.S. Attorney General submitted a letter to congressional leadership stating that the government will not defend DOMA’s constitutionality under certain conditions. The Assistant Attorney General subsequently submitted a letter to the First Circuit notifying the court that the government will cease its defense of Section 3 of DOMA. However, the United States will remain a party to the case presumably to “provide Congress a full and fair opportunity to participate in the litigation.”

Questions regarding same-sex marriages figure prominently in California. After the state supreme court’s decision finding that denying same-sex couples the right to marry violated the state constitution, voters approved a constitutional amendment (“Proposition 8”) limiting the validity and recognition of “marriages” to heterosexual couples. Subsequent court challenges ensued. On August 4, 2010, a federal court in the Northern District of California found that Proposition 8 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In Perry v. Schwarzenegger (704 F.Supp.2d 921 [N.D. Ca. August 4, 2010]), the court found that the federal constitutional right to marry applies equally to same-sex couples and that Proposition 8 is not rationally related to any legitimate government purpose. This is the first time a federal court has recognized such a right.

This report discusses DOMA and legal challenges to it. It reviews legal principles applied to determine the validity of a marriage contracted in another state and surveys the various approaches employed by states to enable or to prevent same-sex marriage. This report also examines House and Senate resolutions introduced in previous Congresses proposing a constitutional amendment and limiting federal courts’ jurisdiction to hear or determine any question pertaining to the interpretation of DOMA.


Date of Report: June 28, 2011
Number of Pages: 35
Order Number: RL31994
Price: $29.95

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