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Today, Gay & Lesbian Advocates & Defenders (GLAD) filed a Motion for Summary Judgment in US District Court as part of their response to the Department of Justice’s (DOJ) Motion to Dismiss Gill v. OPM, a challenge to Section 3 of DOMA. DOMA Section 3 prevents the federal government from recognizing same-sex marriages. The DOJ has until December 4th to respond to today’s filings.
Regardless of how the US District Court judge rules, GLAD expects the decision to be appealed to the 1st Circuit Court and perhaps ultimately to the United States Supreme Court, which may or may not decide to hear the case.
If GLAD is ultimately successful, the natural question is “how will the ruling affect me?”How will the ruling affect you? According to GLAD attorneys Mary Bonauto and Gary Buseck*, the answer is a bit complicated and somewhat open-ended. It will depend to a large degree on whether it is the 1st Circuit or the United States Supreme Court (USSC) that makes the final ruling, as well as where you live. *The following is my lay understanding of Mary & Gary’s explanation, and any errors are mine.
The USA and territories have been divvied up into 11 United States Court of Appeals “Circuits”. After the US District Court judge rules, Gill will be appealed to the 1st Circuit, which includes Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. If the 1st Circuit determines that DOMA Section 3 is unconstitutional and rules in the Plaintiff’s (our) favor and the decision is not stayed pending appeal to the USSC, Gill plaintiffs would get immediate relief with respect to their specific complaints.
The effect on other people living in the 1st Circuit will probably depend on whether their state or territory recognizes their marriage. The general rule is that the federal government looks to the state of residence to determine marriage status when someone applies for federal benefits. For example, if I want to sponsor my lawfully wedded wife for US citizenship and we live in one of the 1st Circuit states that doesn’t recognize us as married (Maine, Puerto Rico, Rhode Island), the federal government will still see us as legal strangers because our state of residence does. But if we live in Massachusetts or New Hampshire (after 1/1/10), the federal government will consider us married because those states do.
There would probably be no immediate effect on the ability of married same-sex couples living in other Circuits, even in marriage equality states like (California), Connecticut, Iowa or Vermont, in their ability to access marriage-related federal benefits. A ruling in one circuit that a federal law is unconstitutional doesn’t automatically strike that law in other circuits. This causes a “conflict of circuits”, where the law may be applied differently in different circuits until Congress repeals the law or the USSC steps in.
If the case is appealed to the USSC and they rule in our favor, DOMA Section 3 will become history and all married couples living in states which recognize their marriage will also be recognized by the federal government as married for purposes of federal law.
Because Gill does not challenge DOMA Section 2, the section which allows states to disrespect marriages from other states, the only way married couples living in anti-equality states will get access to the federal benefits of marriage is if Congress repeals Section 2 or the USSC strikes it down via a different lawsuit.
In September, Congressman Jerrold Nadler (D-NY), Congresswoman Tammy Baldwin (D-WI) and Congressman Jared Polis (D-CO) introduced The Respect for Marriage Act (H.R.3567), a bill that would not only repeal DOMA entirely but would also explicitly remove the state-to-state portability problem for same-sex couples. H.R.3567 currently has 104 House co-sponsors but as yet there is no Senate companion bill.
REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.Section 1738C of title 28, United States Code, is repealed, and the table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by striking the item relating to that section.
SEC. 3. MARRIAGE RECOGNITION.
Section 7 of title 1, United States Code, is amended to read as follows: Ӥ 7. Marriage
”(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
”(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.”
The approval of Washington’s domestic partnership law by voters on Nov. 3rd was an incredible victory. Yet, states that relegate same-sex couples to domestic partnerships, civil unions or reciprocal beneficiaries still fail them in one very important way: by withholding the word marriage, they fail to ask the federal government to confer the 1138 federal rights, responsibilities and benefits of marriage to these couples.
Success of Gill, like the landmark Goodridge case, will be ground-breaking. But it won’t be the end of the story for any of us. We need to keep nibbling away at this problem along all the edges: employers, local law, state law, federal law, court challenges and keeping up the dialogue with future straight allies. If our allies don’t know we still face major hurdles, they won’t be there to help us. Keep them in the loop, and remind them to come out to their straight friends too.
7 Comments
Many thanks LurleenA great summary indeed!
For those that have been stirred by this, you too can donate to the efforts of GLAD at:
http://www.glad.org
Thanks for the detailed explanation. I knew the case would only effect states with marriage equality, but I didn’t realize the case would initially only effect 11th district states (Puerto Rico? who knew). A Gill win would trigger GLAD type cases for one or all of the other four equality states.
Yes, thanks Lurleen,.. was discussing this this weekend..with another non-lawyer so we didn't know. Want to discuss the Olsen Boies case and District 9 next? Please.
Good break down, Lurleen!You did a good job making legal speak make sense. Excellent point as well about sharing it with our straight friends and allies. I still know so many people that think just because we can get married in MA that it’s a done deal everywhere else. They don’t get the complications and problems caused by letting the states decide our fate.
Great post, very informativeBut quite depressing as well. For years now I’ve been predicting that we’ll have marriage equality in this country in my lifetime. But with all the facts in front of me, that’s looking less and less likely all the time. This state-by-state strategy will likely never result in marriage equality for the masses. I know some will respond by saying “but look at the victories we’ve had” and “we’re moving in the right direction”. But honestly, with our 0-31 ballot record, along with Congress and President Fierce Advocate nowhere to be found on DOMA, I’m not exactly feeling optimistic.
state-by-state isn’t the end-game, it’s a starting placeTo put things in perspective, California was the first state to have it’s supreme court rule that bans on inter-racial marriage were unconstitutional. It was another 20 years before the United States Supreme Court overturned such bans nation wide (and for that matter, Georgia only recently voted to remove its anti-miscegenation laws from the books – even though they were no longer valid, and hadn’t been for almost 40 years)
Right now, gay couples can legally marry in 5 states. Six years ago, that number was zero. That’s significant progress. I don’t know how old you are, but I don’t think your hope of seeing marriage equality nationwide is all that unreasonable.
And yes, Lurleen, excellent breakdown!
I appreciate your optimismbut I’m just not feelin’ it. In your example, at least California’s Supreme Court interracial marriage ruling didn’t get the Prop 8 treatment. That’s the problem – for us it’s usually 1 step forward and 1 or two steps back. And I’m talking about TRUE marriage equality. A marriage in one of those 5 states isn’t equality until all those lovely federal benefits go along with it. And what about those states with constitutional amendments, what about them? Many of them could likely never even get civil unions passed in those states, let alone marriage equality. Will it be considered a success if we don’t get rid of DOMA and, in 10 or 20 or 50 years, most of us can marry in our home states, except for folks in Alabama and Mississippi? And let’s not hold our breath thinking the SCOTUS will fix everything. If President Fierce Advocate keeps up his current track record, Sarah Palin could be making the next couple of SCOTUS appointments.
By the way I’m 46, so as far as I’m concerned, I’ve only got about 20 years to get married and have a honeymoon on which I’m still more interested in having sex versus bingo on the Lido deck.