Defining gay marriage for the feds.

The law, lawyers, and the court.
March 4 2009 12:04 PM

State of the Union

Defining gay marriage for the feds.

On Tuesday, a gay rights organization filed a lawsuit in Boston whose import and importance are likely to be misunderstood. Filed on behalf of eight married same-sex couples and three people who survived their same-sex spouses, the complaint in Gill v. Office of Personnel Management challenges a congressional statute that refuses to recognize same-sex marriages under federal law. Much of the media coverage will probably focus on the gay rights angle of the case. But Gill also raises the broader issue of how far the federal government can intrude on state sovereignty—in this case, how states define marriage. It is worth distinguishing between the two takes on the case, because the lens one chooses could easily determine the result.

In Massachusetts, same-sex couples have been able to marry since 2004, and more than 10,000 such couples have done so. In the eyes of the Bay State, these same-sex married couples are exactly the same as cross-sex married couples. In the eyes of the federal government, these same-sex couples are not married. The 1996 Defense of Marriage Act, signed into law by President Bill Clinton, defines the word marriage, for federal law, to mean "only a legal union between one man and one woman." It also defines the word spouse to refer "only to a person of the opposite sex who is a husband or a wife."


The consequences of this restrictive federal definition are far-reaching. A same-sex couple whose marriage is valid in Massachusetts cannot get spousal benefits under the federal Social Security program. If that couple consists of a citizen and a noncitizen, the citizen cannot sponsor the noncitizen spouse for citizenship. If that couple includes an employee of the federal government (the largest employer in the United States), the nonemployee spouse cannot receive family health insurance benefits, retirement benefits, or death benefits.

The best-known couple described in the case shows how the discrepancy works. Plaintiff Dean Hara is the widowed spouse of former U.S. Rep. Gerry E. Studds. After 13 years together as a couple, Studds and Hara married in Boston in 2004, when Massachusetts allowed them to do so. Two years later, Studds did not come home from his morning walk with their dog, because he had passed out from a blood clot in his lung. He died in the hospital. Massachusetts treated Hara as a surviving spouse, by, for instance, releasing Studds' remains to him. The federal government, in contrast, treated Hara as if he and Studds had never married.  Hara was denied the lump-sum benefit to which the Social Security Act entitles surviving spouses and was denied the annuity he would have received as the spouse of a federal employee.

One could see Hara's glass as half-full of state benefits rather than half-empty of federal ones. After all, only Massachusetts and Connecticut currently permit same-sex couples to marry. But that would miss a fundamental dimension of this case.

The discrepancy between federal and state definitions of marriage affects not just individual rights but also state sovereignty. Before the DoMA, the definition of marriage rested almost exclusively with the states. U.S. Supreme Court decisions handed down before and after the DoMA shore up the understanding that state governments, not the federal government, should control the definition of marriage. In 1995, the Supreme Court decided the landmark case of United States v. Lopez, which limited congressional power more than it had been in almost 60 years. The Lopez court's concern was that Congress was unconstitutionally encroaching on traditional state domains, including family law. Indeed, it referred to family law (which it found to include "marriage, divorce, and child custody") no fewer than four times as an area where the federal government should fear to tread. In 2000, the court reiterated its view that "marriage" was one of the "areas of traditional state regulation."

Gill will likely find its way to the U.S. Supreme Court because, unlike existing challenges to state bans on same-sex marriage, it raises a claim under the federal Constitution. If the case makes it to the nation's high court, some conservative justices will be confronted with a seeming tension. These justices tend to favor moving power from the federal government to the state government, as in Lopez. At the same time, they hardly favor expanding the right to marry by, for instance, making same-sex marriage a constitutional right.

But this tension dissipates if we look at what Gill does and does not seek to accomplish. The suit argues only that if a marriage is recognized as valid in a state, the federal government should also recognize it. It does not seek to affect the marriage laws of any state. It does not seek to require that states that do not permit same-sex marriages recognize marriages performed in states that do. And it does not maintain that the federal government must permit same-sex couples to marry across the board.

Put differently, this lawsuit is not just about gay rights but about preserving the nation's federal structure. It takes aim at a failure of the federal government to defer to state definitions of marriage. Where no difference in definition exists between state and federal law, the suit asks for no federal adjustment. For instance, if a couple travels to Massachusetts or Connecticut to get married and then returns to their home state where that marriage is not recognized, the suit does not, as a general matter, maintain they should acquire federal protections.

One can argue over whether it's appropriate to keep the federal government out of marriage. But many of the justices on the court have already taken the position that family law is state law. If conservative jurists—on the Supreme Court or otherwise—care as much about states' rights as they claim to, this should be an easy case for them.



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