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: ”§ 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.