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Wednesday, November 21, 2012

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 may provide similar state-level rights and/or benefits. Many states have statutes or constitutional amendments limiting marriage to one man and one woman. These state-level 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 for purposes of federal benefit programs, marriage is defined as the union of one man and one woman. Lower courts have started addressing DOMA’s constitutionality. On May 31, 2012, the First Circuit became the first federal appellate court to determine DOMA’s constitutionality. The court found that the denial of benefits to same-sex couples residing in a state where they were legally married caused an adverse effect on a historically disadvantaged group. This adverse result, combined with its implications for historical state prerogatives, called for a careful analysis. After conducting a “closer examination” of reasons Congress proffered for denying benefits, the court found these justifications inadequate on equal protection grounds and, therefore, held DOMA unconstitutional. In reaching its narrow decision, the court left unresolved questions regarding whether these couples have a fundamental right to marry or whether states are obligated to recognize such unions. Similarly, on October 18, 2012, the Second Circuit Court of Appeals found DOMA unconstitutional, albeit using a different standard of review. The Second Circuit is the first appellate court to hold that homosexuals are a quasi-suspect class for equal protection purposes warranting intermediate scrutiny of legislation pertaining to their status. It would appear that there is a circuit split as to the appropriate standard of review in determining DOMA’s constitutionality on equal protection grounds, which may make it more likely that the Supreme Court will review one or both of these cases.

Questions regarding same-sex marriages figure prominently in California. After the state’s highest court found that denying same-sex couples the right to marry violated the state constitution, voters approved a constitutional amendment (“Prop 8”) limiting the validity and recognition of “marriages” to heterosexual couples. On February 7, 2012, a panel of the Ninth Circuit Court of Appeals affirmed a lower court decision finding Prop 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 Prop 8. In a matter of first impression, the lower court found that Prop 8 deprived same-sex couples of the fundamental right to marry under the Due Process Clause and 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. Therefore, this decision may have little impact on other jurisdictions, making U.S. Supreme Court review less likely.

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 address same-sex marriage. It also examines previous Congressional resolutions proposing a constitutional amendment and limiting federal courts’ jurisdiction to hear or determine any question pertaining to the interpretation of DOMA.

Date of Report: November 5, 2012
Number of Pages: 36
Order Number: RL31994
Price: $29.95

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