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 seven states. Other states allow civil unions or domestic partnerships, which grant all or part of 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 about the validity of such unions outside the contracted jurisdiction and have bearing on the distribution of federal benefits.

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. Lower courts are starting to address DOMA’s constitutionality. On July 8, 2010, a U.S. district court in Massachusetts found Section 3 of DOMA unconstitutional in two companion cases brought by same-sex couples married in Massachusetts. In one case, the court found that DOMA exceeded Congress’s power under the Spending Clause and violated the Tenth Amendment. In the other, 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. In February 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 stating that the government will cease its defense of Section 3 of DOMA. However, the United States will remain a party to the cases 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 February 7, 2012, a panel of the Ninth Circuit Court of Appeals affirmed a lower court decision finding that Proposition 8 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment, inasmuch as voters took away a right from a minority group without justification when they approved Proposition 8. In a matter of first impression, the lower court found that Proposition 8 (1) deprived same-sex couples of the fundamental right to marry under the Due Process Clause and (2) excluded such couples from state-sponsored marriage while allowing heterosexual couples access in violation of the Equal Protection Clause. While the appellate court affirmed the lower court’s decision, it did so on much narrower grounds based on historical facts specific to California. As such, it appears that this decision will have little, if any, impact on other jurisdictions. However, the case will likely be appealed to the full Ninth Circuit or directly to the U.S. Supreme Court. It is unclear whether the Court would accept the case for review on the merits, as it pertains to an interpretation of a state constitutional amendment.

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. The 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: February 14, 2012
Number of Pages: 35
Order Number: RL31994
Price: $29.95

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