published Friday, February 25th, 2011

Gay marriage policy change: Questions and answers

By MARK SHERMAN

Associated Press

WASHINGTON — The Obama administration announced it no longer will defend the constitutionality of a federal law that bans recognition of gay marriage. Here, in question-and-answer form, is a look at the Defense of Marriage Act and the impact of the administration’s policy reversal on this 15-year-old law.

Q. What is the Defense of Marriage Act?

A. Passed by a Republican-led Congress and signed into law by President Bill Clinton, a Democrat, in 1996, DOMA defines marriage as a union between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere.

Q. What changed in the Obama administration’s interpretation of the law?

A. Barack Obama promised to work for repeal of DOMA in his campaign for president, but his administration continued to defend and enforce it for the past two years. Attorney General Eric Holder said Wednesday that while the Justice Department would continue to enforce the law, it no longer would defend its constitutionality. Specifically, Holder said, the section of the law defining marriage as between a man and a woman is unconstitutional, in the administration’s view. Importantly for judicial review, Holder says courts also should apply a heightened level of scrutiny that makes it more difficult for laws to be upheld.

Q. What are the practical effects of the act’s definition of marriage?

A. DOMA has been used by federal officials to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples. These include federal health, Social Security, pension and tax benefits, even to gay couples who were legally married in the handful of states that recognize same-sex unions. The Government Accountability Office has estimated that there are more than 1,000 provisions of federal law “in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor.” Widows have been forced to pay estate taxes, where a survivor in a heterosexual marriage would have no tax bill from an inheritance. Federal employees may not enroll their same-sex spouse in federal health plans or take family and medical leave to care for their partner. Same-sex couples cannot file joint income tax returns or benefit from state retiree health insurance plans that are controlled by federal tax law. DOMA even has been used to prevent a gay couple from filing a joint petition for bankruptcy.

Q. But isn’t gay marriage legal in some parts of the United States?

A. Yes, same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia. Thirty states have constitutional amendments banning gay marriage. Still other states recognize civil unions, but not gay marriage, between partners of the same sex. In addition, California’s constitutional amendment banning same sex-marriage, Proposition 8, has been ruled unconstitutional by a federal court. The case is on appeal.

Q. So what changed with the administration’s new view of the matter?

A. DOMA remains in effect. But in federal courts, the significant legal firepower of the federal government has changed sides, which could influence judges’ consideration of anti-DOMA lawsuits.

Q. How have the legal challenges to DOMA fared?

A. The legal case against DOMA was difficult to make before states began recognizing gay marriage. But last year, U.S. District Judge Joseph Tauro in Massachusetts ruled DOMA unconstitutional in the face of challenges by same-sex couples as well as the state of Massachusetts. Two new federal lawsuits in Connecticut and New York raise many of the same issues.

Q. What has the Supreme Court said about DOMA?

A. Nothing, so far. The court has turned down appeals asking it to weigh in on the law. But those appeals were filed after lower courts upheld DOMA. The court often hears appeals when a federal law has been struck down. There is no timetable for when the next DOMA case might reach the Supreme Court.

Q. Are the DOMA and Prop 8 cases in California alike?

A. Yes and no. They both deal with the same basic issue: Does the government have a legitimate interest in preventing gay couples from getting married and enjoying the same benefits as other married couples? But the details differ and eventual Supreme Court review of one or the other would not necessarily produce identical results. The Prop 8 case probably would ask the court to decide whether gay marriage should be a right nationwide. In DOMA, the court could strike down a portion of the law without forcing states to recognize same-sex marriages. Of course, until appeals come forward and the court agrees to hear them, this is all speculation.

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