First Circuit Rules: Defense of Marriage Act is Unconstitutional

Contributed by Larry Smith

On May 31, 2012, the U.S. Courts of Appeals for the 1st Circuit upheld trial court rulings in both Massachusetts v. United States Department of Health and Human Services and Gill v. Office of Personnel Management affirming that the Defense of Marriage Act violates the Equal Protection Guarantees in the due process clause of the Fifth Amendment of the U.S. Constitution and violates the Tenth Amendment to the U.S. Constitution because it falls outside of Congress’ authority under the Spending Clause. 

The Defense of Marriage Act (DOMA) was passed by both houses of Congress in September of 1996 and was signed into law by President Bill Clinton. Section 3 of the act defines “marriage” as “only a legal union between one man and one woman.” The act does not prevent same-sex couples from getting married in states where such unions are legal, but does prevent same-sex married couples from filing joint federal tax returns, from collecting Social Security survivor benefits and prevents federal employees from sharing health-insurance and other benefits with a same-sex spouse.

In today’s mobile society, a same-sex couple that married in a state allowing same-sex marriages may move to a state that does not. Should the current state of residency honor the marriage? This is further complicated by the adoption of children, issues that emerge when filing for bankruptcy, issues involving immigration and social security benefits.

The 1st Circuit’s decision will be appealed to the U.S. Supreme Court and won’t be enforced until the court weighs in. If the court takes the position that this is a state’s rights issue, there is still a Full Faith and Credit Clause issue affecting individuals who are married in one state and move to another. The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the U.S. Constitution, which addresses the duties that states within the U.S. have to respect the “public acts, records, and judicial proceedings of every other state.”

There are more questions here than there are answers, and it is doubtful that a U.S. Supreme Court opinion regarding DOMA will globally resolve all issues, although this may well be needed to establish consistency on this controversial issue.

What does this development mean for employers, exactly? Given the interaction of DOMA with FMLA leave, this ruling may mean that an employer – even in states that do not recognize same-sex marriage – must nonetheless grant FMLA leave to an otherwise-qualified same-sex spouse. Additionally, the decision may impact other benefits-related issues concerning same-sex spouses. Again, since this judgment will not be enforced until the United States Supreme Court weighs in, employers should stay tuned for the final impact of this decision.