Tuesday, March 3, 2009

New federal lawsuit challenges Defense of Marriage Act

The same group that won the Massachusetts Supreme Court decision paving the way for gay marriages in that state has filed a new federal lawsuit challenging the Defense of Marriage Act (DOMA). The suit alleges equal protection violations of same-sex spouses who were denied federal benefits (such as pensions or Social Security) under DOMA. I can't go into great detail without access to the actual filings, but at first blush this seems like a clear-cut equal protection violation. In my opinion DOMA cannot withstand constitutional scrutiny, and this lawsuit could very well be the first step in dismantling DOMA.

Today's lawsuit doesn't challenge the provisions of DOMA that allow states to refuse to recognize same-sex marriages effectuated in other states. Mary Bonauto, head of Gay & Lesbian Advocates & Defenders (GLAD), insists that her organization has no plans to challenge that portion of DOMA, but it's only a matter of time before the rest of DOMA is challenged. If the federal benefits portion of DOMA is faulty (and I believe it is), then a similar argument can be made that the state provisions violate the Full Faith and Credit Clause.

I've never heard any of the legal counsel to the LDS Church give an explanation as to why the Church supported a federal constitutional amendment on traditional marriage, but I have always assumed it was because the Church's legal advisers recognized that DOMA was probably unconstitutional. From a legal perspective I think an amendment to the U.S. Constitution on marriage is a bad idea, since marriages have always been left to the states. But if I am right and DOMA is destined to fail, then only a federal constitutional amendment could preserve the traditional definition of marriage on a national level.


  1. Can you please define "traditional marriage", because I personally don't think that there is one, unless you count "traditional" as that which only encompasses the last 50 years. Was it no the LDS Church that "traditionally" defined marriage as "multiple marriage" in polygamy? In fact, there is a sect of LDS 'traditionalists" in Texas, my state, that continue to practice this form of "traditional marriage". The police recently raided their community after continued claims of underage physical abuse of minors. http://www.abc.net.au/news/stories/2008/04/06/2209129.htm
    I'm just saying.

  2. A very important point. Any attorney worth his/her salt knows that the argument is all but won in the definitions.

    One potential definition would look to all of human history, which would probably reveal a different and broader concept of marriage than has been used in the last few hundred years. That definition might encompass plural marriages, concubines, etc. I don't think this is a very good approach legally, however, because it is virtually impossible to determine.

    Another potential definition would be to use the common concept of marriage since the 20th Century. This would be along the lines of the last 50 years, as Vic mentions. However, this approach seems incomplete. The turn of the 20th Century seems like an arbitrary date, and what actually constituted marriage during that time period may still be disputed.

    If we have to pick a definition of traditional marriage, it might make sense to consider how the institution was defined at the founding of the country under Anglo-American jurisprudence. This is a common short-cut that courts use in other arenas. I don't think this is a perfect definition, but it's the best I can think of off the top of my head. If anyone else has a better definition of traditional marriage I'd be interested to hear it.

  3. Everybody knows that "traditional" marriage is simply code-speak for "heterosexual" marriage. This whole debate is being framed as "protecting" traditional (heterosexual) marriage. But let's be honest, it is about "protecting" it from gays and lesbians, who are a threat because they are . . . not heterosexual.

  4. You're probably right for most people, but I was attempting a working legal definition. Under the scheme I proposed, using the concept of marriage in the Anglo-American system in 1789, marriage was more than just a heterosexual relationship. Social mores at the time prohibited plural marriages and marriages between close family members. Both of these restrictions are still in effect -- state marriage laws prohibit multiple spouses and close family members from marrying. Polygamy, in fact, is prohibited on the federal level through immigration laws. Mormons, of course, are familiar with the anti-plural marriage side of the definition of "traditional marriage," though it hasn't been an issue in over 100 years.

    I think the question of definitions is interesting because it frames the debate. And both supporters and proponents of same-sex marriage admit that it constitutes a fundamental alteration of the concept of marriage in American jurisprudence.

  5. You bring up an important point: "...concept of marriage in the Anglo-American system since 1789." Maybe the courts should look back at the traditional mores of our country, but then again, if that was the usual solution for questions concerning minority rights I'd venture to guess that blacks would still be prohibited from marrying whites. The mormon church banned blacks from becoming priests because to do was an abomination: http://www.pbs.org/mormons/view/

    Lets try not to frame a new definition for marriage because doing so scares people and tends to pigeon hole the problem: gays v. straight.

    Rather, lets leave marriage the way it is at its most bare-bones fundamental level: the state recognizes that two individuals that are of age, who are in love, and who wish to spend the rest of their lives together can marry. This principle encompass everyone including: Brittany Spears in Vegas, Anna Nicole Smith and her billionaire old geezer husband, the "gold digger", the Mormons, the blacks who wish to marry whites, Sarah Palin's new teenage son-in-law, and of course those sodomites who are "ruining the traditional notion of marriage."

    How about marriage as a contract between two consenting adults? Like any contract it comes with risks, benefits, and security; the risk of course in Texas is that you get half if there is a divorce. Ouch!

    Yes, of course as most religious fundamentalists believe, marriage is more than a contract because it involves two humans, but also involves an omnipotent god that enforces a "universal" morality. But lets try to bring it back down to a level of real-world, pragmatic, and equal-protection solutions; the state, can't compete with abstract concepts of faith. If your of legal age, and are a consenting adult, and are a law abiding citizen who pays taxes, then why shouldn't you be able to marry the person you love, save for any cause of fraud.

    To be honest, and I hope that I don't get kicked off this blog sometime in the future, I really think that the Mormon church does not want gays to marry because then more gays would marry, the effect being that it would undermine their ideals of a very strong notion of "traditional family". The problem is that the word "family" in America mean more than being a mormon with a wife and husband and 10 kids. As the video previously cited shows, the Mormon church has evolved with society, hopefully it can do the same with gay marriage.

  6. Vic, I'm not sure if we have a coherent commenting policy, but rest assured that you're nowhere near getting "kicked off."

    With respect to the 1789 definition of marriage, I'm embarrassed to say that I forgot about prohibitions on interracial marriage in some states. (I grew up in the Northeast, where interracial marriage was never prohibited.) Clearly, that definition wouldn't work.

    With respect to your last point, I think that's exactly right: the Mormon Church's specific theology sees gender as an eternal and intrinsic individual characteristic, and family units are integral parts of Mormons' concept of salvation. Thus, the Mormon Church opposes same-sex marriage because it undermines Mormon salvation, not just "traditional families."

    The social institution of marriage clearly predates the American government, or any other existing government. It is a socially and evolutionary advantageous practice. When government and religion were unified, it made a lot of sense to use marriage as a governance tool. This arrangement continued to function fairly well after the separation of church and state, so long as there was a coherent and uniform concept of marriage. That is no longer the case.

    The solution, as I see it, is to divorce the social institution from government altogether. Allow civil unions for everyone, and leave the marriages to the social and religious entities that perform them. That way, a changing legal definition will not affect the social or religious concept of marriage, while still providing equal protection under the law. I would also want to see some strong protections ensuring that religious groups would be free to practice and enforce their own definitions of marriage. That solution is probably flawed as well, but it's the best I can think of that would balance the competing interests of equal protection and free exercise.