Under the U.S. Supreme Court: DOMA challenges fall like snow on high court

MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Speaker John Boehner (OH) begins the nomination process for a presidential candidate at the 2012 Republican National Convention at the Tampa Bay Times Forum in Tampa on August 28, 2012. -- UPI/Kevin Dietsch
Speaker John Boehner (OH) begins the nomination process for a presidential candidate at the 2012 Republican National Convention at the Tampa Bay Times Forum in Tampa on August 28, 2012. -- UPI/Kevin Dietsch | License Photo

WASHINGTON, Sept. 9 (UPI) -- Given the strident differences on gay marriage between U.S. President Obama and Republican rival Mitt Romney, the issue has produced few political headlines as the candidates slash at each other in the final months before the November election.

No such case at the U.S. Supreme Court where challenges to the federal Defense of Marriage Act, or DOMA, have fallen like snow.


DOMA was enacted by Congress and signed into law by President Bill Clinton in 1996 -- Clinton has since said he regrets his signature. But in February 2011, Obama announced he had concluded that the act was unconstitutional, and though it would continue to be enforced, the U.S. Justice Department would not defend its controversial Section 3 in court.

In the court challenges, Section 3 is defended by counsel for the Republican U.S. House leadership.

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Section 3 defines a "marriage" for all purposes as "only a legal union between one man and one woman as husband and wife," and defines a "spouse" as "a person of the opposite sex who is a husband or a wife."


The section also "denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws," the Justice Department told the U.S. Supreme Court in a brief.

Although DOMA "does not purport to invalidate same-sex marriages in those states that permit them, it excludes such marriages from recognition for more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status," the U.S. brief said -- such as Social Security.

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Only Section 3 is challenged in cases brought to the Supreme Court. Section 2, which "provides that no state is required to give effect to any public act, record or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its law," is not under attack.

Federal judges in all seven challenges to Section 3 have declared it unconstitutional. Six of those challenges have arrived at the Supreme Court, though veteran court correspondent Lyle Denniston, writing for, reports the justices have scheduled one of them for conference.

The justices conference behind closed doors to decide which cases to review. It takes a vote of four on the nine-member court to accept a case.

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Denniston said it's not certain whether the justices will combine the challenges into one case, or set some of them aside pending a ruling in others.

The U.S. House leadership has filed its own brief defending the act.

"DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage," the brief said.

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"Section 3 of DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition which 'governs only federal programs and funding.'

"Congress, of course, did not invent the meanings of 'marriage' and 'spouse' in 1996," the brief said. "Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant -- and what courts and the executive branch have always understood it to mean -- in using those words: a traditional male-female couple."

Technically the brief represents the majority of five-member bipartisan House leadership group. The GOP brief said in a footnote: "The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, speaker of the House, the Honorable Eric Cantor, majority leader, the Honorable Kevin McCarthy, majority whip, the Honorable Nancy Pelosi, Democratic leader, and the Honorable Steny H. Hoyer, Democratic whip. The Democratic leader and the Democratic whip have declined to support the position taken by the group on the merits of DOMA Section 3's constitutionality in this and other cases."

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One of the cases that has arrived at the high court is a challenge brought by the state of Massachusetts. In an approach that may cause problems for the court's five conservative justices -- who tend to support state rights -- and four liberals -- who tend to support individual rights -- the state flexes is sovereign muscle.

"The Commonwealth of Massachusetts, pursuant to its sovereign prerogative and the Massachusetts Declaration of Rights, has issued marriage licenses to same-sex couples since 2004," the state brief said. "These marriage licenses are indistinguishable from those issued to different-sex couples in all respects but one: they are singled out and rendered invalid for purposes of federal law under DOMA."

The act "is an unwarranted expansion of federal power that violates the allocation of powers between the federal government and the states. The commonwealth challenged DOMA on these grounds, which were adopted by the district court but not the court of appeals and which provide independent bases for ruling DOMA unconstitutional. DOMA expands federal power in two important and unjustifiable ways.

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"First, DOMA is an impermissible federal intrusion into the Commonwealth's regulation of marriage, which this (Supreme) Court has consistently recognized is a power exclusively reserved to the states," the brief said. "Whereas most states recognize a single marital status that is given effect under federal law, DOMA effectively divides marriage in Massachusetts into two different statuses: married for all purposes for different-sex spouses, and married but 'federally single' for same-sex spouses. This federal interference in the state regulation of domestic relations is unprecedented in the nation's history and violates the 10th Amendment."


The 10th Amendment, last on the Bill of Rights, says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

"Second," the brief said, "DOMA forces the commonwealth, as a condition of its receipt of federal funds in connection with ... participation in the federal Medicaid program and State Cemetery Grants Program," for the maintenance of veterans' graves, "to engage in unconstitutional discrimination in violation of the Equal Protection Clause of the 14th Amendment. Placing such a condition on the commonwealth's receipt of federal funds exceeds Congress' power under the Spending Clause," which gives the federal government to right to tax.

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At this point, it's unlikely the legal fight over DOMA will climax before the November election, unless the justices expedite it.

The national division over gay marriage is reflected in the political platforms of the Republican and Democratic parties.

At their national convention in Tampa, Fla., Republican delegates approved a plank calling for a constitutional amendment limiting a marriage to a man and a woman. At their convention in Charlotte, N.C., the Democratic delegates approved a plank backing marriage "without government interference," and generally supporting the rights of same-sex couples to marry.

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