May 13, 2011
Is Same-Sex Marriage Legal Under Federal Law? Maybe. Sometimes.
The status of same-sex marriage is confusing enough with some states allowing it and most states expressly prohibiting it. The 1996 Defense of Marriage Act (DOMA) was supposed to define marriage under federal law as being between one man and one woman. What this means in practice is in flux and can change by the day.
One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.
Immigration cases, however, fall under a unique set of courts. Attorney General Holder recently vacated a decision by the Board of Immigration Appeals, an administrative body that interprets immigration law.
A board decision can be vacated by the Attorney General, which Holder did in the case of Paul Wilson Dorman, an Irish immigrant who is in a civil union with a New Jersey man. The board ruled that the two men were not spouses because of DOMA. Holder vacated the ruling, asking what the ruling would be if DOMA did not exist.
In light of Holder's decision, an immigration judge in New Jersey ruled that Henry Velandia, a Venezuelan, could not be deported because he is married a man who is a U.S. citizen. The two were married in Connecticut.
Department of Justice spokesperson Tracy Schmaler told the New York Times that this does not mean that same-sex couples will now be treated as spouses. “As we have made clear, we will continue to enforce DOMA,” said Schmaler.
The House of Representatives is also committed to enforcing DOMA, even if this means giving same-sex couples more lax ethics regulations. Members of Congress (and some key staff) are required to report on their finances, disclosing the sources of income and the assets of their spouses. Last year, drafts of House ethics rules revisions included the extension of these rules to same-sex couples. This extension was cut, however.
According to Roll Call, the continuation of the status quo was hailed by both social conservatives and gay rights groups, albeit for different reasons. For social conservatives, DOMA prohibited treating same-sex couples as married, even if it means fewer ethics requirements. For gay rights groups, the rule would have penalized same-sex couples without extending them full benefits of marriage. Both groups, however, would favor extending the ethics rules to both same-sex and different-sex cohabiting couples.