State challenges DOMA constitutionality

R.I. joins 14 states to oppose the law, which withholds federal marriage benefits from same-sex couples

Senior Staff Writer
Thursday, March 21, 2013

Rhode Island Attorney General Peter Kilmartin filed an amicus brief to the U.S. Supreme Court March 1 arguing the court should declare Section 3 of the Defense of Marriage Act unconstitutional.

DOMA, which was signed into law in 1996, established the federal definition of marriage as a lawful union between one man and one woman — regardless of the marriage laws in a particular state — and allows states to choose whether to accept other states’ same-sex marriage statutes. As a result, all federal marriage benefits, including the ability to file joint tax returns and receive health care coverage under a spouse’s plan, only apply to heterosexual couples.

The Supreme Court will hear the case of Windsor v. the United States, challenging Section 3 — the restriction on federal benefits for same-sex couples with legally recognized marriages — when it considers the constitutionality of DOMA March 27.

By signing the amicus brief, Rhode Island joined “14 other states challenging the constitutionality of DOMA,” said Amy Kempe, Kilmartin’s public information officer.

“We’re not the primary party in the lawsuit,” but signing the amicus allows Rhode Island to show support for the groups challenging DOMA’s constitutionality, Kempe said.

Gov. Lincoln Chafee ’75 P’14 has long opposed DOMA, signing a 2011 letter sponsored by the Human Rights Campaign that declared the federal legislation financially irresponsible and counter to the principles of equality and fairness, according to the Human Rights Campaign. Chafee also participated in a panel at New York University sponsored by the Respect for Marriage Coalition, where he discussed the financial drawbacks of restricting benefits for same-sex couples.

The brief defends states’ prerogatives to regulate domestic relations, keeping issues of family and marriage away from the federal government, Kempe said.  “States have made different choices about protecting same-sex marriages,” she said.

“DOMA is one of the first times that the federal government has weighed in on regulating domestic relations,” Kempe said. Roger Williams Law Professor Jared Goldstein said the brief starts with a “federalist argument that appeals to both the liberals and the conservatives — a states’ rights argument.”

For the federal government to say one state’s marriage laws are valid and another’s are not violates the most basic definition of equality, he said.

Wary of making a firm prediction of the trial’s outcome, Goldstein said he has a hard time imagining that five judges would vote against what he called the equal treatment of legally married couples.

When DOMA was passed, no same-sex couples were legally married, so equal protection was purely hypothetical, Goldstein said. Now, real couples, married under the laws of their state, are being treated differently. “Labeling DOMA unconstitutional will not cause every state to recognize same-sex marriage, but it is one more step on that road — and a very significant step,” Goldstein said.

Supporters of the law’s constitutionality argue that “the Constitution leaves the decisions concerning such complex social arrangements to the people … (who) determine through their representatives the best way to structure such laws,” wrote Tony Perkins, president of the Family Research Council, in U.S. News & World Reports. “There is nothing in our Constitution that mandates same-sex “marriage.””

After a Massachusetts federal judge ruled the law unconstitutional, U.S. Attorney General Eric Holder announced President Obama’s administration will stop defending the bill in court.

Earlier this month, former President Clinton wrote a column in the Washington Post arguing DOMA — the bill he signed in 1996 — was unconstitutional “Because Section 3 of the act defines marriage as being between a man and a woman, same-sex couples who are legally married in nine states and the District of Columbia are denied the benefits of more than a thousand federal statutes and programs available to other married couples,” he wrote.

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