TBA Law Blog

Posted by: Christy Gibson on Nov 14, 2012

Kate Tucker*

The Defense of Marriage Act (“DOMA”) (1 U.S.C. §7 and 28 U.S.C. §1738C) is a federal law that defines marriage as the legal union of one man and one woman. Section 3 of DOMA, the most controversial provision of the Act, provides for the non-recognition of same- sex marriage for purposes of determining eligibility for federal benefits. After the November 2012 election, nine states, including Maryland, Maine, Washington and the District of Columbia permit same-sex marriage. Several other states recognize out-of-state marriages and/or civil unions.

In February 2011, the Attorney General announced that, while the Obama Administration intended to enforce DOMA, based on its conclusion that Section 3 of the Act was unconstitutional, it would not defend DOMA in court until Congress repeals Section 3 or the U.S. Supreme Court renders a verdict regarding its constitutionality. Following that announcement, the U.S. House of Representatives retained former U.S. Solicitor General, Paul Clement, to defend DOMA in the stead of the Department of Justice (“DOJ”). In March 2011, Senator Feinstein reintroduced the Respect for Marriage Act which, if enacted, would repeal DOMA.

Challenges to DOMA have been filed in several federal courts based on various issues including bankruptcy, estate taxes, public benefits and immigration. Section 3 of DOMA has been found unconstitutional in eight federal courts, including the First and Second Circuit Courts of Appeals. Several of those cases are being considered for review by the U.S. Supreme Court.

Recently, in Windsor v. United States, the Second Circuit Court of Appeals held Section 3 of DOMA unconstitutional under the Equal Protection Clause of the Constitution. No. 12-2335-cv (2d Cir. Oct. 18, 2012). Windsor involved a surviving same-sex spouse whose inheritance had been subject to federal taxation as if the couple were unmarried. Not only did the Court of Appeals strike down Section 3 of the Act as unconstitutional, but it held that laws classifying people based on sexual orientation should be subjected to a heightened scrutiny. In applying such “intermediate scrutiny” for the first time in same-sex marriage cases, Windsor constitutes a sweeping federal decision on gay rights. The Obama Administration has urged the Supreme Court to hear the Windsor case, noting that it is the most appropriate means for review of DOMA’s ban on federal benefits for legally married, same-sex couples.

Other courts have also reviewed challenges to DOMA. In Massachusetts v. U.S. Department of Health and Human Services, the plaintiffs claimed DOMA goes beyond Congress’ authority, undermines states’ efforts to recognize marriage between same-sex couples and codifies animus toward gay and lesbian people. 698 F. Supp. 2d 234 (D. Mass. 2010). The District Court held that DOMA violates the Tenth Amendment, falling outside Congress’ authority under the spending clause of the Constitution. On appeal, the First Circuit Court of Appeals agreed that Section 3 of DOMA was unconstitutional, but on a different basis. It found that while the federal government has an interest in marriage, this area has traditionally been left to the states, and DOMA constituted an unlawful attempt by Congress to influence a state’s decision in shaping its marriage laws. 682 F.3d 1 (1st Cir. 2012).

In Pederson v. Office of Personnel Management, same-sex couples in Connecticut, Vermont and New Hampshire argued that DOMA conflicted with the federal government’s consistent deference to each state’s definition of marriage prior to the enactment of DOMA. No. 3:10-cv-1750, 2012 U.S. Dist LEXIS 106713 (D. Conn. July 31, 2012). Ruling for the plaintiffs, the District Court held that Section 3 of DOMA violates the equal protection laws. Pederson is pending appeal in the Second Circuit; however, a request has been made to the Supreme Court to hear the case in conjunction with the other DOMA cases.

Golinski v. Office of Personnel Management concerned a challenge to Section 3 of DOMA by an employee seeking health benefits for her same-sex spouse. 824 F.Supp.2d 968 (M.D. Cal. 2012). The District Court ruled in favor of Ms. Golinski, finding that DOMA violates her right to equal protection under the law. The case is pending appeal in the Ninth Circuit; however, the Department of Justice has asked the Supreme Court to review the case prior to Ninth Circuit review.

In May 2011, Attorney General Eric Holder intervened in a Board of Immigration Appeals (“BIA”) case involving a bi-national same-sex couple, in which the BIA had denied an application for cancellation of removal pursuant to the provisions of DOMA. The Attorney General vacated the underlying order of removal and remanded the case to the BIA to determine whether the applicant (1) was a “spouse” under the law of the state in which he lived; and (2) would be an eligible “spouse” under the Immigration and Nationality Act, absent the provisions of DOMA. Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011). Subsequently, the BIA has remanded several cases involving bi-national same-sex couples to the USCIS to investigate whether the individual would be eligible for the benefit absent the provisions of DOMA.

The Supreme Court is considering these four DOMA cases (Windsor, Massachusetts, Pederson and Golinski) for review and is expected to release its decision on November 26, 2012. The Supreme Court’s decision could have significant ramifications in terms of immigration law. Bound by federal law, the U.S. Citizenship and Immigration Service (“USCIS”) applies DOMA’s definition of marriage when assessing eligibility for immigration benefit. As such, individuals in bi-national, same-sex relationships are prohibited from sponsoring spouses for permanent residency; they cannot be accompanied by spouses while in the U.S. in temporary status; and they cannot use the marriage as a basis for obtaining a waiver or relief from removal. Following the Obama Administration’s February 2011 announcement that it deems Section 3 of DOMA as unconstitutional but will continue to enforce the law, the USCIS reaffirmed its policy of denying bi-national, same-sex immigration applications.

Assuming the Supreme Court agrees to hear Windsor, instead of remanding the case to the Court of Appeals, it could establish the law in terms of eligibility of same-sex couples for federal benefits. This would necessarily cause a major shift in USCIS policy, possibly resulting in a significant number of individuals becoming eligible for immigration benefits.


*Originally from England, Kate Tucker earned her J.D. from William and Mary College of Law in 2001. She is licensed to practice in Tennessee and her primary practice areas include business immigration and employment law. Ms. Tucker may be reached at ktucker@kramer-rayson.com or (865) 525-5184.