« Bill Would Strengthen Role of Religious Freedom Envoy | Main | Did Jesus Endorse Mike Huckabee? »

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.

Comments

I'm a law-abiding, taxpaying Gay American, and I resent John Boehner and other Republicans using my tax dollars to defend something as transparently unconstitutional as the Defense of Marriage Act.

WHY is DOMA unconstitutional? Consider: A Straight couple legally married in Iowa is automatically entitled to 1,138 legal benefits, protections, and responsibilities according to the Government Accounting Office (GAO). Many of those benefits have to do with tax law, Social Security, inheritance rights, child custody, and so on. But because of DOMA, a Gay couple that is legally married in Iowa is still unrecognized by the federal government for those benefits.

Consider, also, the "Full Faith & Credit" clause of the Constitution. Because of this, any Straight couple can fly off to Las Vegas for drunken weekend, get married by an Elvis impersonator, and that marriage is automatically honored in all 50 states, and at all levels of government. But thanks to DOMA, a Gay couple that is legally married in Iowa becomes UN-married if they relocate south to Missouri.

The ONLY real difference between a married Gay couple and a married Straight couple is the gender of the two people who have made the commitment. It has nothing to do with procreation, since couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. So there is really no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits, protections, and responsibilities that married Straight couples have always taken for granted. This cannot be accomplished in a piecemeal, state-by-state fashion; it is the FEDERAL government which, through its own actions, has made this a federal issue.

I applaud Mr. Anziulewicz's well-written and unbiased article. My usual Google search for news on "same-sex marriage" led me to this site. As soon as I saw "Christianity," I expected the worse--slant and bias.

I can honestly say I don't have a comment on the content of this piece. It stated the facts accurately. That's saying a lot. I'm usually commenting to correct misrepresentations or misperceptions. You can search my moniker for proof of that!

Thanks for the balanced, fact-based post. My underlying philosophy is freedom means you can vote whichever way you want, whether based on logic, religion, or the heart. But true freedom imposes a burden on you, an expectation by your fellow free neighbors to know the actual facts and the consequences of your vote before you vote.

You article has made that that much more possible.

I too prefer historical fact to wishful thinking

"- The Supreme Court has upheld Congress’ requirement that some states outlaw polygamy and define marriage as one man and one woman. The Supreme Court has already upheld the constitutionality of the requirement Congress imposed on many incoming states that they must ban polygamy in their state constitutions as a condition of statehood. The Supreme Court wrote this memorable passage explaining the authority the Constitution grants Congress to define marriage, even for incoming states:

[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885)."

@CA and others: http://tech.mit.edu/V124/N5/kolasinski.5c.html
"Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest. The burden of proof, therefore, is on the advocates of gay marriage to show what state interest these marriages serve. Thus far, this burden has not been met."

They've managed to convince some people that they don't have the same exact rights we all do, when that's a total fallacy. They have the same exact right to marry someone of the opposite sex (and above a certain age) and to receive all the benefits due that union. They should not have the right to marry someone of the same sex or to marry more than one person at a time, or to marry a child, or a horse or anything else.

DEAR DAN:

You claim that "Homosexual relationships do nothing to serve the state interest of propagating society."

First of all, with the human population of this planet now at 7 billion, and possibly reaching 10 billion by 2050, "propagation" should be the LEAST of our worries.

Seccondly, as I mentioned in my previous post, couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. And keep in mind that many Gay couples DO have children, through adoption or artificial insemination.

I also think giving Gay couples the incentives of marriage, thus encouraging monogamy and commitment, if far preferable for society and public health rather than relegating Gay people to lives of loneliness, depression, and promiscuity.

@CA: "One may argue that lesbians are capable of procreating via artificial insemination, so the state does have an interest in recognizing lesbian marriages, but a lesbian’s sexual relationship, committed or not, has no bearing on her ability to reproduce. Perhaps it may serve a state interest to recognize gay marriages to make it easier for gay couples to adopt. However, there is ample evidence (see, for example, David Popenoe’s Life Without Father) that children need both a male and female parent for proper development. Unfortunately, small sample sizes and other methodological problems make it impossible to draw conclusions from studies that directly examine the effects of gay parenting. However, the empirically verified common wisdom about the importance of a mother and father in a child’s development should give advocates of gay adoption pause. The differences between men and women extend beyond anatomy, so it is essential for a child to be nurtured by parents of both sexes if a child is to learn to function in a society made up of both sexes. Is it wise to have a social policy that encourages family arrangements that deny children such essentials? Gays are not necessarily bad parents, nor will they necessarily make their children gay, but they cannot provide a set of parents that includes both a male and a female."
http://tech.mit.edu/V124/N5/kolasinski.5c.html

Here in Europe gay unions are no longer arguable. They are legal. They work. There are no theological or other obstacles. And there have been no adverse social consequences.
The only losers have been those churches which opposed them, which are now irrelevant and almost completely ignored on any issue. This is very sad, because this includes most Evangelical churches.
Only a minority of hetero couples planning to marry intend to have children. So procreation is a minor issue.
If it were really "essential for a child to be nurtured by parents of both sexes" then by all means enact legislation to remove children from widowed mothers or other single parents - but use this to oppose same sex relationships ?? Bizarre.

Yes, how totally ignorant of those churches to not cave in and lie and deny God's word and what God has said about homosexuality and sodomy-it is an abomination to Him. That will not change. Probably in a very short while, Christians will probably be asked to deny Jesus as well. Well, you can hold your breath, for true believers will not deny our Lord and Savior so we can be politically correct while everyone else is practicing their sins. This is all told in Revelation and will come as no surprise. Sin is sin and not going to make it more politically correct to gain "more numbers".

Galatians 6:7, 8 "Be not deceived; God is not mocked: for whatsoever a man soweth, that shall he also reap. 8For he that soweth to his flesh shall of the flesh reap corruption; but he that soweth to the Spirit shall of the Spirit reap life everlasting."
Here is the principle of sowing and reaping. The gay community and those churches who embrace it and are now heretical, you are sowing to the flesh, you will reap corruption. Your harvest is coming. It is inevitable.

Hi Barbara and Dan,
You are absolutely right to look to Scripture for guidance and direction. But it is important that we understand what the various passages are actually teaching us. Yes, it has been the understanding for several generations now that the Bible teaches that all gay relationships are wrong. But the Church also believed for many centuries that Scripture taught that the Earth was the centre of the universe.
No, God does not change, and His Word cannot be altered. But human understanding is often flawed.
Perhaps it would be good to read some of the Old Testament scholars who have studied Hebrew in depth. Jacob Milgrom is one of many who have a profound understanding of Leviticus. There are others.

1."...it is important that we understand what the various passages are actually teaching us." Leviticus 18:22 is pretty clear: "'You shall not lie with a male as one lies with a female; it is an abomination." Look at the context. Should we then jettison our views of the other moral issues in Lev. 18? I hope you don't think we should. Genesis 2:24 is pretty clear too:"For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh." How much more clearer did God need to be? The very syntax of this passage excludes all other arrangements. 2."...it has been the understanding for several generations now that the Bible teaches that all gay relationships are wrong..." Try for the last 2000 years of Christian history and the past 3000 years of Jewish history. 3."...human understanding is often flawed." Yes, I know I've read your comments and the comments of the other gay advocates on the site. 4."But the Church also believed for many centuries that Scripture taught that the Earth was the centre of the universe." Red herring - the fact that at one time the Church believed that scripture taught the earth was the center of the universe is irrelevant to this topic. And to some degree you are poisoning the well, too, in that you are trying to discredit traditional Biblical moral beliefs/standards by presenting unfavorable information that will bias readers against the traditional Biblical teaching. Also, what the church believed and what the Bible teaches may be two different things. The Bible teaches that God created the universe by speaking it into existence. Exactly how He did this - the physical processes - is not clear to us. The Bible is authoritative - the Church is not.

Hi Dan,
No, I really think the cosmology parallel is a good one. The experience of many Evangelicals in recent years has been precisely that of the Bible-believing community in the 1500s. Joshua bid the sun to stand still, not the earth. What could possibly be clearer than that? Yet Christians gradually came to accept – though not without an almighty ruckus – that science was teaching otherwise, and that science was right.
Did God change? No. Did Holy Scripture change? No. Did our understanding of what apparently straightforward texts actually mean change? Yes, it most certainly did.
Today the sciences of anthropology, human physiology, psychology, genetics and now zoology are gradually revealing to Christians that same sex orientation is normal, healthy, unchosen, unchangeable, non-contagious, exists throughout the animal kingdom, is confined to a discrete percentage of the population and is no threat to the continuation of the species.
In parallel academic research, Hebrew and Old Testament scholars are looking afresh at the original Judaeo-Christian texts and finding that they do not say what some Jewish and Christian believers have long thought they said.
And in further parallel experience, more and more churches are now welcoming gay couples into membership and into ministry with very positive and exciting results.
Dan, please find a Biblical scholar in your denomination or at a university or theological hall near you, and have a chat. You will almost certainly find that all your supplementary questions can be answered quite satisfactorily. This has been the experience of many Evangelicals in recent years, and our numbers are steadily growing.

@SC: Where is biblical evidence which shows God approves of homosexual behavior/gay marriage?

With all due respect, SC, you have no Scriptural/historical evidence so you make it up. And you want to be taken seriously? What a waste of time.

Sarah Pulliam Bailey makes the argument that the Defense of Marriage Act (DOMA) is unconstitutional and “the only real difference between a married gay couple and a married straight couple is the gender of the two people who have made the commitment.” In the premises that Sarah includes to support her conclusions, not once does she even mention what the DOMA entails and why it is unconstitutional. She gives situations and examples to consider but she doesn’t go in to the constitutional reasoning and governmental motives that would support her argument against the DOMA. What does the constitution say about marriage? What is the “Full Faith & Credit” clause? To my knowledge, the constitution states that marriage is between a man and a woman, which therefore makes gay marriage unconstitutional. It doesn’t then make sense to say that the DOMA is unconstitutional. If she was trying to argue that the constitution should be changed or that it’s flawed, that is what her argument should have been. Although the claims she makes are emotional and aggressive, they don’t provide enough concrete premises that show why the DOMA is so against the constitution. Her sub conclusion about the difference between gay and married couples is a good point but irrelevant to the main conclusion and doesn’t relate at all to the constitution. A good argument should make you believe what the person is trying to say and at the very least, make you stop and think about how you feel about the matter. I felt like she was simply going on an angry rant about the federal government with no good facts to back her up. Her tangent went off its course with very weak premises and overall, it was a bad argument.

Stacy, you know you are picking a fight when you say 'There is no biblical basis for one-man-one-woman marriage as we know it today.' Why not refer to the passages in Genesis and elsewhere in the Old Testament and New Testament that deal with marriage and work from there?
Blessings.

Cara Lucke writes, "To my knowledge, the constitution states that marriage is between a man and a woman, which therefore makes gay marriage unconstitutional."

EARTH TO CARA: The word "marriage" does not occur in the Constitution. Technically there is no Constitutional right for any couple, Gay or Straight, to marry.

However, the federal government has complicated the issue by taking a vested interest in married couples for the purposes of tax law and Social Security (among the 1,138 legal benefits, protections, and responsibilities that are automatically bestowed on couples once they marry). Therefore this is not an issue that can be left up to the states to decide individually, since it wouldn't do for a Gay couple that is legally married in Iowa, for instance, to become automatically UN-married once they decide to move somewhere else.

Religious beliefs are irrelevant to this debate, because (1) the United States is not theocracy, and (2) churches will continue to be free to conduct or deny ceremonies to whomever they want.

Procreation and parenting are irrelevant, since (1) couples do not have to marry to have children, and (2) the ability or even desire to have children is not a prerequisite for getting a marriage license.

This is simply a matter of equal treatment under the law.

"Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest."

DEAR DAN:

Since you are in the habit of repeating yourself, allow me to repeat my response.

First of all, with the human population of this planet now at 7 billion, and possibly reaching 10 billion by 2050, "propagation" should be the LEAST of our worries.

Seccondly, as I mentioned in my previous post, couples do not need a marriage license to make babies, nor is the ability or even desire to make babies a prerequisite for obtaining a marriage license. And keep in mind that many Gay couples DO have children, through adoption or artificial insemination.

I also think giving Gay couples the incentives of marriage, thus encouraging monogamy and commitment, if far preferable for society and public health rather than relegating Gay people to lives of loneliness, depression, and promiscuity.

Stacy, Why do I always feel like I am listening to the computer HAL off of 2001 Space Odessey when I read your posts? It really annoys me. You write as if you - like Hal - are pure intelligence and everyone else needs your insights and wisdom; you never distort information; you are foolproof and incapable of error. In addition to your condescending tone, your fake attempts at placating the reader has just the opposite effect on me. I find the hair rising on the back of my neck and thus I am inclined (and will henceforth plan) to skip over your posts.

"...relegating Gay people to lives of loneliness, depression, and promiscuity." So why, then, are you called gay?

I HAVE DISCOVERED THE REAL REASON GAYS? WANT TO LEGITIMIZE HOMOSEXUALITY AND LEGALIZE GAY MARRIAGE!!! (I put the ? after gay there for a reason. You see, CA claims that gays live lives of loneliness, depression, and promiscuity. But then they turn around and call it the gay lifestyle and themselves gay. I mean, shouldn't they call it the sad lifestyle or the miserable lifestyle or maybe the "Man, this really sucks" lifestyle, or how about the woebegone lifestyle? Why is it "gay"? And shouldn't they call themselves "sads" or "woebegones" instead of "gays"?) And now for the real reason gays? want to get married: TAX BREAKS! Thank you. Thank you. Thank you very much, ladies and gentlemen. Hey, I love you all. Announcement: "Ladies and gentlemen: Elvis has left the building."

Your argument here that homosexuals are only fighting for the right to marry for tax breaks is a poor one for many reason. Firstly, your entire speech on renaming the ‘gay lifestyle’ does not support your overall conclusion in any way. You have provided no facts, but only hateful opinions and what I believe to be false information. I have found no articles or evidence to support that California claims that gays live a life of loneliness, depression or promiscuity. You clearly have not done any research or fact-checking on this subject, yet you demand that you be applauded for your skewed vision of this topic. Furthermore, even IF homosexual couples wanted to wed purely for the sake of tax breaks, who are you, or anybody else for that matter to deny them that very same right that you hold? Nothing you have stated here can be called a good argument.

Uh, Kevin - come over here and give me some neck, brutha'. (This is a colorful expression used by hip urban African Americans males in response to a "slow-on-the-uptake" comment made by someone in their peer group. They will give the offending party an open hand smack on the back of his head while saying, "C'mere Willis and give me some neck!" This is usually followed by a roar of laughter by the rest of the group.)

Another thing, KS (not Kansas - but Kevin S.) whatever you do, do not read the posts above mine - especially CA's (not Califorina - but Chuck Anziulewicz's post) I'm just trying to save your feelings.

And Please, CT, do not delete Kevin's post. It is awesome.

Look at this quick, KS (that's Kevin Sprague - not Kansas) before CT guy deletes it. This is my supporting evidence about gays wanting to be able to marry for the tax breaks.

http://articles.moneycentral.msn.com/CollegeAndFamily/LoveAndMoney/TheMythOfTheMarriagePenalty.aspx

Kevin, you have the exact same rights as every other person in the US. You can marry a person of the opposite sex 18 years and older and have all the advantages of having a union blessed by God if you are a believer. If you're not a believer, you still of course have the same exact same rights to marry any person of the opposite sex. But you want extra rights, not the same rights, you want special privilege. You can't marry a child, or someone of the same sex, or an animal, or a tree, etc, but I'm sure the homosexuals will push for children to be married at some point down the road, with the argument that there is age discrimination. Sorry, you are not discriminated against whatsoever, you have the same rights we all do.

Matt. 7:12 "In everything, therefore, treat people the same way you want them to treat you, for this is the Law and the Prophets." Law and Prophets, GP. You don't want to go there. And Hillel? I don't think you want his opinion of homosexualality. I recommend you find gay-friendly sources for your quotes. The Law and Prophets? Not a good source for gay-friendly quotes. Hillel also not a good source for gay-friendly quotes.

Kang, and I'm sure satan and the demons will be rejoicing with you because it's an abomination to God. You make your choice, and it has eternal consequences, I'll be praying for you.

This is a yes or no question. Is homosexuality against federal law?

Susan asks, "Is homosexuality against federal law?"

The answer is NO, as of the Supreme Court's Lawrence v. Texas decision of 2003. In that decision the majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sex between consenting same-sex adults acting in private.

"Susan asks, "Is homosexuality against federal law?"
But by and large gay marriage is. So if sex between same-sex adults acting in private is not against the law, why this hateful assault by gays against the traditional understanding of marriage? THEY WANT THEIR TAX BREAKS! IT'S ALL ABOUT $$$$.

And so I repeat myself one more time: "Homosexual relationships do nothing to serve the state interest of propagating society, so there is no reason for the state to grant them the costly benefits of marriage, unless they serve some other state interest."

DEAR DAN:

Research into the societal benefits of marriage has determined the following:

Married couples typically contribute more and take less from society.

Married couples support and care for each other financially, physically and emotionally and often contribute more to the economy and savings.

Individuals who are married are less likely to receive government entitlements.

Individuals who are married statistically consume less health care services, and often give more to churches and charities.

Married couples are better able to provide care and security for children.

So please tell me what negative impact committed loving relationships have on society, and why Gay couples should be excluded from the same benefits and responsibilities of marriage? As you can see, it isn't JUST about propagation.

"While gay activists usually deny that they want to indoctrinate children, said Villarreal, “let’s face it—that’s a lie.” “We want educators to teach future generations of children to accept queer sexuality. In fact, our very future depends on it,” he wrote."
(from Gay columnist: let’s face it, we want to indoctrinate children http://www.lifesitenews.com/news/gay-journalist-lets-face-it-we-want-to-indoctrinate-children)

@CA - First of all, gay marriage is a biblical oxymoron. (Gen. 2:24) Also, homosexual behavior is a perversion like incest or pedophilia or beastiality so I would never want the govt. to legitimize or leagalize it or in any way give its approval or tax breaks (for goodness sake!) to those who choose to engage in a perversion. And this will be the same argument polygamists will use to seek legalization of their choice, and also those who seek to legitimize incestuous relationships. I can hear them quoting you now: "As you can see, it isn't JUST about propagation."

What you're saying about marriage applies only to heterosexual marriages. It is a well known fact that many of those involved in gay marriages have "open" marriages so that they can continue their multi-partner perversion. It's a fact that many homosexuals have several hundred partners (many over 1000) over their lifetime, and they don't even care if they know the other partner. That's why "gay baths" are still popular. The same can not be said about heterosexual men, except in very rare cases. Very, very few have even 10 partners in a lifetime, let alone over 1000. It's very easy to find the research on the internet. So, the whole marriage thing is for a tax break as one "gay" person said, and they want to indoctrinate our children, as one "gay" person replied to me. Then people will want to legalize pedophilia, and then they will claim age discrimintation and try to get that approved. This all might sound silly and ridiculous to some, but believe me, in the 50's and 60s, people would be just shocked and disgusted to think that they would someday be allowed to marry each other. Seeing the homosexual parades, and knowing the truth about their life-style make it crystal clear why it is an abomination to God. Our bodies are not designed for sodomy, the rectal wall is one cell in thickness, so do you really want to think that sodomy is normal and healthy? It is not.

Sociologists and psychologists are not in a position to define morality - God's word is the benchmark for what is moral or immoral. So I will take God's word over one of your godless sociologists/psychologists any day of the week. Leviticus 18 declares homosexual behavior to be an abomination before God. It was then; and it is now, too. If you excuse it then logically you must excuse the other perversions listed in there too. Altho your soc.'s and psych's may say those other behaviors are normal, normal people would disagree with them. This is your 800 lb. gorilla. Neither you nor any other gay advocate who tries to reinterpret Lev. 18 can explain how you can logically excuse homosexual behavior and logically not excuse beastiality or the other sexual perversions listed there. And you can't compare homosexuality to race. Normal people know the difference. (Gal. 3:28 excludes sinful lifestyle "There is neither Jew nor Gentile, neither slave nor free, nor is there male and female, for you are all one in Christ Jesus." Nowhere in that verse does it justify homosexual sin. Just be intellectually honest.

Dear Dan and Barbara,

First I would like to say that I am a devoted catholic and love God and the bible with all of my heart and soul.
However I am 100% for same sex marriage and believe that if two people truly love each other then they should be able to love each other and show it my marrying each other. Being gay is not a choice, do you honstly think people choose to get teased in school and desctiminated for the rest of their life?