The Washington Post reports that if, as expected, the Supreme Court rules that the section of the Defense of Marriage Act (DOMA) prohibiting the federal government from recognizing same-sex marriages is unconstitutional, then legally married same-sex couples in states with marriage equality will reap state and federal marriage benefits. But it will be up to the Obama administration to decide whether to extend the federal benefits of marriage to those states that prohibit same-sex marriage. That’s because another section of DOMA, not before the court, allows states to not recognize same-sex marriages performed elsewhere.
As the article notes, the pressure on Obama to issue an executive order extending full federal benefits to married gay couples living in states that don’t recognize their marriages will be great. And he may do so. On the other hand, Obama has refused to issue an executive order prohibiting government contractors from discriminating against LGBT workers, saying that instead Congress should pass the long-stalled Employee Nondiscrimination Act (ENDA). So it would be in character for him to hold that, instead of taking executive action, it’s up to Congress to repeal DOMA.
That would allow Democrats to rally gay voters and their dollars in an attempt to take back control of the House—unless it’s made clear that he won’t get cover from progressives for going down that road.
27 Comments for “What Will Obama Do?”
posted by John D on
As the Obama administration pointed out in one of their early briefs on DOMA, states have long have the ability to claim that a marriage from another state was against their public policy (remember the screams from gay community, as the examples given referenced matters such as child brides and close relatives marrying).
In other words, Section 2 of DOMA asserts a right states already had. Clearly, DOMA Section 2 does not stop New York from recognizing a same-sex marriage performed in Massachusetts or some other state. It’s clear that New York considers it good public policy to recognize same-sex marriages, no matter where they were performed. (This point is ignored by those who say that Edie Windsor has no case, because she was married in Canada. New York considers Canadian marriages valid.)
A same-sex couple married in Massachusetts (or some other state) could certainly sue their home state (say, Alabama) for recognition. I suspect anyone who tried that would be told by lawyers that the time was not ripe for this.
As for the Obama administration, as the IRS has long treated couples married in their home states as single, reversing this doesn’t seem to be a great problem from their point of view. It’s easier from a federal standpoint to say, “you’re married, we treat you as married,” and ignore what anyone’s home state has to say. I don’t see a problem for the Obama administration here.
posted by Tom Scharbach on
As the article notes, the pressure on Obama to issue an executive order extending full federal benefits to married gay couples living in states that don’t recognize their marriages will be great. And he may do so.
The Post article is typical of non-legal journalism in that it floats right over the top of a legal quagmire.
Pressure and political implications aside, the precise wording of the Court’s opinion will determine what the federal government has the power to do with respect to recognition of same-sex marriages.
Looking at the most likely case, a narrow holding in which the Court rules that Section 3 of DOMA is unconstitutional to the extent that it prohibits the federal government from recognizing marriages of same-sex couples who are married under the laws of the state in which they reside, but does not extend beyond that holding, then Section 3 of DOMA continues in full force and effect with respect to federal recognition of marriages of same-sex couples whose marriages are not valid under the laws of the state in which they reside.
If that is the holding, the administration will have no power to recognize such marriages, by Executive Order or otherwise.
If the Court’s holding is broader than the likely case, then the question of federal recognition of same-sex marriages validly performed under the laws of the state in which the marriage was contracted by not recognized in the state of residency, will arise. Depending on how the Court’s holding is worded, and the legal reasoning behind the holding, the administration might have room to issue an Executive Order extending beyond states in which same-sex marriages are valid.
In that is the case, I would hope (and would I expect) that the Obama administration would study the issue and its implications before acting in those cases.
I recognize the pressure that the administration will be under in both cases, but given the complexity of the issues presented, an Executive Order could create more harm than good for married same-sex couples residing in states that ban same-sex marriages as a matter of public policy. An Executive Order of the kind contemplated could (and probably would) give rise to an enormous amount of litigation over issues of federalism.
A case in point: A Wisconsin resident is subject to criminal penalties ($10,000 fine; 9 months incarceration) for contracting a marriage outside Wisconsin that is not legal in Wisconsin. Despite legal advice, a relatively large number of Wisconsin same-sex couples have married in Canada and Iowa. As far as I know, no same-sex couple who married in Canada or Iowa has been prosecuted under the law. But that could change if our hard-core social conservative government is provoked, and it could change at the whim of any County District Attorney. You can bet that an Executive Order from the Obama administration would be provocative. I would not be surprised to see attempts at criminal prosecution of same-sex couples who went outside Wisconsin to contract illegal marriages, and I would expect that the state government would bring a lawsuit to block the operation of an Executive Order granting federal rights to criminals.
That would allow Democrats to rally gay voters and their dollars in an attempt to take back control of the House—unless it’s made clear that he won’t get cover from progressives for going down that road.
I’m glad to see that you are in favor of putting pressure on foot-dragging politicians (at least so long as they are Democrats, of course), but I wonder if you aren’t building up a head of steam before you have the facts to do so.
Perhaps we should see what the Court rules — and how the ruling is worded — before we start demanding this action or that, particularly since there is a good chance that an Executive Order would be illegal.
posted by Jorge on
Suffice it to say I am surprised by the article’s claim that under a narrow ruling, the Obama administration could extend legal benefits through regulation. It begs the question of why it couldn’t and didn’t do so a long time ago, and the answer is simply that it is illegal.
I would, of course, be opposed to an executive order.
posted by Lymis on
No, it really doesn’t beg the question. DOMA constrained the government from granting any federal marital benefits to any but opposite sex unions.
posted by Jorge on
If that is the case, then the Supreme Court will either grant the federal government the power to recognize a same sex union, or it will not.
The idea that it will create a legal limbo for any one couple in such a way that it allows the federal government to decide whether or not to recognize any one same sex marriage is one that I see exactly 0.00 evidence to support. So if I’m going to take it as a given that such a legal limbo might exist in the future, which this article seems to be demanding that I do despite a complete absence of evidence, I would have to ask why the government doesn’t take advantage of already existing legal limbo right now.
The answer is because the article is making it up out of whole cloth. If you don’t agree you, you should give me a reason.
posted by Tom Scharbach on
If that is the case, then the Supreme Court will either grant the federal government the power to recognize a same sex union, or it will not.
Jorge, you’ve got the constitutional question exactly backwards.
The question presented in the DOMA litigation is not whether the federal government has the constitutional power to recognize a marriage valid under state law (it does), but instead whether the federal government has the constitutional power to refuse to recognize a marriage valid under state law (the Court will rule on the question).
Assuming that the Court answers the question in the negative (that is, holds that federal government cannot refuse to recognize a marriage valid under state law), then the question becomes “What is a marriage valid under state law?”, or more particularly, “Is a marriage between two residents of a state that is void under the constitution and/or laws of that state a valid marriage under state law?”
The simple answer is “No.”
In our constitutional system, the power to determine who is and who is not married is historically a “reserved” power, that is, a state power. Marriage law varies among the states, and under the “public policy exception” to the Full Faith and Credit clause of the federal constitution, a marriage the is valid under the laws of State A may void under the laws of State B if State B voids the marriage for reasons of pubic policy.
The “public policy exception” is rarely invoked by states with respect to marriage, but state public policy regarding marriage is also rarely challenged. For example, prior to the Loving decision, a number of states banned interracial marriage and did not accept interracial marriage certificates issued in other states. The full faith and credit clause was never used to force a state to recognize a marriage it did not wish to recognize.
So far, so good, in terms of legal theory, at least.
As was the case with interracial marriage prior to Loving, a number of states (actually a majority at this point) have in place constitutional amendments that void same-sex marriages, a clear invocation of the “public policy exception”. As a result, a same-sex couple resident in State A and validly married under the laws of State A could well find their marriage void under the laws of State B when the couple moves to State B and takes up residency in that state.
At that point, what does the federal government do with respect to the application of federal laws under which marital status determines benefits and burdens? Does it recognize the State A marriage of the residents of State B, a marriage voided by the laws of State B, or does it not? Does it have the constitutional power to recognize the voided marriage as a valid marriage, or does it not? If it does, what, if any limitations, restrict that power?
The core question in this situation (not currently litigated) is whether the federal government has the constitutional power to recognize a marriage that is not valid under state law, that is a marriage that is void under state law. That is not being litigated, and to my knowledge has never been litigated, but the litigation is almost certain to come if the President resorts to a broad “Executive Order Fix”.
That’s where the “limbo” comes in. It is inherent in our constitutional system establishing a federal republic, a republic in which powers are distributed between the state governments and the federal government.
I don’t have the answers to those questions and the many other questions posed by the legal “limbo”. I have a sense of the questions, but I don’t have the answers, because the answers tread on uncharted legal ground.
The Court’s decision in the Windsor case is not likely to provide any answers, because the question of whether or not the federal government has the constitutional power to recognize a marriage that is not valid under state law is not involved in the Windsor case.
At best, we can hope for a decision that holds that federal government cannot refuse to recognize a marriage valid under state law. That decision will decide the issue with respect to the marital status for federal purposes of married same-sex residents of the 12 states in which same-sex marriage is valid, but it will not decide the issue which respect to the marital status of the couple who married in State A but who were (or then became) residents of State B, which voids the marriage.
So the Obama administration, along with the rest of us, will be on uncharted ground with to respect federal recognition of those voided marriages.
The matter is complicated by the differing requirements under federal law and regulation with respect to recognition of marriage, a difference illustrated by IRS regulations relating to tax law (which determine whether a couple is married or not by looking to the laws of the current state of residence) and DOD regulations relating to service personnel spousal benefits (which look to the laws of the state in which the couple was married rather than the laws of the state in which the couple currently resides to determine whether a couple is married or not).
The matter is further complicated, vis a vis the question of Executive Order, by the origin of determination of marital status under federal law/regulation. In a number of cases, that determination is mandated by law, in other cases by federal department/agency regulations interpreting a law. An Executive Order can, presumably, mandate a particular interpretation of a law (that is, a department/agency regulation), but cannot, presumably, override an interpretation imbedded in a law passed by Congress.
So if I’m going to take it as a given that such a legal limbo might exist in the future, which this article seems to be demanding that I do despite a complete absence of evidence, I would have to ask why the government doesn’t take advantage of already existing legal limbo right now.
I’ll grant you that the article (and similar articles in the NYT and other media that are reporting on the political aspects of the “Executive Order Fix”) do not report accurately on the “legal limbo”.
But the short answer to your question (“… why the government doesn’t take advantage of already existing legal limbo right now …”) is that Section 3 of DOMA prohibits the administration from doing so.
If the Court rules Section 3 of DOMA unconstitutional, as most expect, then the “legal limbo” comes into play, and the questions far exceed the answers at this point. Whatever the President does or doesn’t do with respect to the “Executive Order Fix” — my hope is that he resists the temptation to try to fix the mess with a broad Executive Order, because all he will accomplish is to poke a hornet’s nest — we are in for a lot of litigation over the coming years as these questions get sorted out.
posted by Jorge on
*Rolls eyes.*
The executive branch, then.
posted by Tom Scharbach on
*Rolls eyes.*
The messiness is too much for you, huh? Get used to it. You are going to be seeing a lot of political and legal maneuvering over these issues before this thing is settled.
The executive branch, then.
The Constitution: “The executive Power shall be vested in a President of the United States of America.” In constitutional terms, there is no “executive branch” distinct from or independent of the President.
posted by Lymis on
I don’t think your conclusion follows.
My husband and I were married in California. Illinois does not (currently) consider it a marriage, but California, Iowa, and a bunch of other states do. For the federal government to recognize it as a marriage for federal purposes even though our state of residence does not wouldn’t be a violation of the state’s right not to extend us state benefits, nor an intrusion on the state’s right not to allow us to marry here.
I don’t think it’s a given either way. I don’t believe that in the history of the country there has been a parallel situation. The closest are first cousin marriages and the various age restrictions, but no state has a constitutional amendment saying that they won’t recognize them, and historically, it almost applied until the government mandated that Utah could not join the Union until it banned polygamy.
I am in a valid marriage that is recognized by a number of states covered under the federal system, and that recognition by them is not contingent on me being a resident there – if I vacation in Iowa or Vermont, they recognize my marriage. That may or may not be enough to allow the Federal Government to step in to grant federal benefits.
Either way, unless the Court declares a universal fundamental right to marriage regardless of the gender of one’s partner, there will be further lawsuits.
posted by Houndentenor on
Since 1996 when the so-called Defense of Marriage Act was proposed I have argued that the entire thing was unconstitutional. The federal government has no authority to decide who can and cannot be married by any particular state. Whether or not states can be forced to accept the marriages performed in another state (there must be precedent involving common law marriages, married first cousins, or couples married at a younger age that would be legal in their state of legal residence?) is another matter. But if the state of Iowa has issued a marriage license, the federal government has no legal authority to treat that couple as unmarried under federal law. By that same reasoning, I cannot see how the president could issue an executive order forcing Louisiana to accept a marriage performed in Massachusetts that would not have been legal to obtain in their state. Perhaps there is some case law that will contradict that reasoning, and I certainly hope there is, but I don’t know of any. So by what authority could the president issue such an order and how would his administration enforce it. It seems highly unlikely that the governor of Texas would abide by such an order. So then what? It’s not a good plan and I think he’d be ill-advised to take on such a battle.
You have a point about nondiscrimination policies for government contractors. I wish he’d do that. Forcing states to accept gay marriages from other states? I just don’t see how he could possible do that and have it accepted by most states, especially states whose constitutions currently do not allow them to accept same sex marriages. It’s bizarre even to suggest such a thing.
posted by Tom Scharbach on
Forcing states to accept gay marriages from other states? I just don’t see how he could possible do that and have it accepted by most states, especially states whose constitutions currently do not allow them to accept same sex marriages. It’s bizarre even to suggest such a thing.
The President has no constitutional authority to issue an Executive Order requiring a state to recognize a foreign marriage (that is, a marriage performed in another state or another country) that is against the public policy of the state.
That is, however, not the question posed. The question posed is whether the President can issue an Executive Order requiring the federal government to recognize a marriage of the residents of a state if the marriage is not a valid marriage under the laws of the state.
The President may have the authority or he may not. As far as I know, the question has never arisen or been tested in court.
I know that an Executive Order is being pushed by many activists (including, it appears, Stephen, which surprises me, given his antipathy toward the growth of federal power) but I think that the President would be well advised to study the issue very deliberately and very thoroughly before acting, taking into account the precise wording of the DOMA decision and the reasoning behind the wording, as well as the consequences of such an order, before making a decision.
Whether the President has the authority or not, issuing an Executive Order to that effect will be the legal equivalent of poking a stick into a hornet’s nest. Such an order is certain to generate a host of unintended consequences, including, quite likely, legal challenges from a number of states like my own.
posted by Houndentenor on
I’ll simplify my point. It is absurd to think that Rick Perry is going to obey an Obama executive order that says Texas (or any other state) has to accept same sex marriages from other states and he will be cheered on by the majority of Texans and the vast majority of Texas Republicans for doing so. Since there is no practical way for the Obama administration to force Gov. Perry to comply with that executive order…then what? National guard troops forcing clerks to accept the license applications at gunpoint? That’s just not going to happen. Stephen’s is an absurd suggestion.
posted by Tom Scharbach on
Stephen’s is an absurd suggestion.
In part it is, in part it is not.
I agree with you that any attempt by the President to require states that ban marriage equality to accept marriage equality in any form would be met with massive resistance, and would create a constitutional crisis. I also believe that the President would be on the wrong side of the constitutional issue — a small part of the massive resistance would be my opposition — and would lose if and when the constitutional issue were decided in the courts.
But that is not what Stephen and the other activists looking toward the “Executive Order fix” are suggesting that the President do. What the EOF-ers are demanding is that the President issue one or more Executive Orders requiring federal agencies to grant federal recognition for federal purposes of SSM’s of married same-sex couples living in states where marriage equality is banned — e.g. require the IRS to treat a married same-sex couple living in Wisconsin identically (where SSM is banned) with a married same-sex couple living in Iowa (where SSM is legal).
On the surface, that sounds like the “fix” it is advertised to be by Stephen and other activists. Scratch the surface and look a little deeper, however, and the suggestion does become absurd in many, but not all, cases.
Here’s a down and dirty look at some of the considerations:
(1) Federal laws and regulations recognize marriages using different criteria for different purposes. For example, DOD treats a couple as married if their marriage was valid when contracted, overriding the effect of the laws of the state of current residency. On the other hand, the IRS treats a couple as married if they are married under the laws of the state in which they currently reside, and requires that federal taxpayers use the same taxpayer status for both federal and state purposes. Strong public policy reasons underlie the difference in treatment. Stephen’s “one size fits all” suggestion ignores the underlying public policy reasons.
(2) Federal law determines, in many cases, which of the two tests of marriage noted above are to be used by the relevant federal agency. It is doubtful that the Executive has the constitutional authority to override a federal law by Executive Order. It is certainly (in my view, anyway, if not in Stephen’s) unwise to allow the Executive to laws of by fiat.
(3) Federal laws and regulations intersect with state laws and state agencies in many areas, if for no other reason than that a myriad of federal laws and regulations contain mandates that require states to administer the laws and regulations. An Executive Order requiring states that ban marriage equality to become actors in recognizing marriage equality with respect to the citizens of their states runs very close to the constitutional line, and probably crosses it. It would almost create a lot of litigation over constitutional issues.
So an EOF, if crafted with any concern at all for our constitutional system, would be yet another patchwork fix that would add complexity to the marriage tapestry, and would probably lead to unintended consequences.
My view is that the administration should move very carefully in this minefield. I believe that there are areas where the EOF would be beneficial and practical, both, but I agree with you that a blanket EOF is an “absurd suggestion”.
Keep in mind, though, Houdentenor, the game that Stephen is playing here, as is evident from his last sentences: “ So it would be in character for him to hold that, instead of taking executive action, it’s up to Congress to repeal DOMA. That would allow Democrats to rally gay voters and their dollars in an attempt to take back control of the House—unless it’s made clear that he won’t get cover from progressives for going down that road.”
This is just another example of Stephen’s constant political whine, and, in my view, that’s all it is. Stephen can’t really be pushing a constitutional crises (e.g. EO override of federal laws duly enacted by Congress) as a serious proposition. He’s almost certainly just playing the fiddle, looking for any excuse to attack President Obama and excuse the Republican Party.
posted by Houndentenor on
” He’s almost certainly just playing the fiddle, looking for any excuse to attack President Obama and excuse the Republican Party.”
Ding ding ding. We have a winner. That’s exactly what it is.
posted by Lymis on
Right now, Illinois recognizes our California marriage and grant us the benefits of a civil union – benefits administered by the state.
The federal government does not recognize that marriage and does not grant us the federal benefits that they would give a recognized marriage.
All that would happen is the converse – Louisiana would NOT recognize the marriage and would not grant any benefits, and would not be forced to recognize it for state purposes, state taxes, state employment benefits and so on.
But the federal government WOULD recognize it and would grant benefits like federal tax status, social security, and so on.
In other words, Louisiana would not have to recognize the marriage in order for the federal government to do so.
That dual recognition status has been going on for over a decade. This would be no different except that it would be reversed.
posted by esurience on
It seems to me that Section 2 of DOMA has nothing to do with the federal gov’t extending benefits to same-sex married couples — whether they reside in a state that recognizes their marriage or not. And so a a repeal of DOMA would not be necessary for Obama to issue that executive order.
posted by Tom Scharbach on
Section 2 of DOMA is not at issue. It is not part of the litigation challenging the constitutionality of Section 3, and it will remain in full force and effect no matter what the Court decides in the Windsor case. It is also irrelevant. It adds nothing to court cases already defining the public policy exception to the Full Faith and Credit clause, and subtracts nothing. It is an exercise in legislative masturbation.
posted by Mark on
It’s good to see that Stephen has suddenly discovered the need for incredibly aggressive executive action, even before reading the Supreme Court’s decision.
I hope there are grounds, in Sec. 3 is struck down, for Obama to act. But it’s also worth pointing out just how unusual the situation will be historically. There’s virtually no precedent–and certainly no precedent on such a large scale–for the federal government to treat as married people whose marriages aren’t recognized by their states. (An executive order, for instance, would almost provide a huge financial and legal incentive for gay and lesbian couples from the non-equal 38 states to get married in one of the 12 equal states, meaning we’d likely have in pretty short order at least tens of thousands of these in-limbo marriages.) So if the Supreme Court does what is expected–strike down DOMA narrowly, avoid deciding Prop 8–the legal issue will only become more complicated.
posted by Houndentenor on
That would create an odd situation when couples from DC who were legally married there by a house in Virginia where the state does not recognize their marriage but the federal government does. I suppose such incidents happened under miscegenation laws before Loving?
posted by Tom Scharbach on
I suppose such incidents [couple married in State A, where marriage is valid, moving to State B, where marriage is void] happened under miscegenation laws before Loving?
I’m sure that it happened, and there are three or four cases I was able to track down with this fact pattern, but my guess is that it was relatively rare because interracial marriage was often a felony in states where it was banned. It is one thing for a married couple to move to a state where your marriage is not recognized; it is quite a different matter to move to a state that will put you in prison because you are married. I could be wrong, but my guess is that most interracial couples married in free states and stayed put.
None of the cases involved issues relating to federal recognition of the marriage, so I drew a blank on that score.
Incidentally, the Loving case arose out of a criminal felony prosecution in the State of Virginia. Mr. and Mrs. Loving were married in DC, and moved to Virginia, where they were arrested and prosecuted under Virginia’s Racial Integrity Act.
posted by Houndentenor on
I know it’s different. I’m just trying to think of anything that would be even remotely similar to having your marriage dissolve as you crossed a state line.
posted by Tom Scharbach on
I’m just trying to think of anything that would be even remotely similar to having your marriage dissolve as you crossed a state line.
That was the legal situation with respect to interracial marriages before Loving, and that is the legal situation now with respect to same-sex marriages. It also happens (relatively rarely) in cases of consanguinity and with respect to common-law marriages, which are recognized by some states but not others.
And just to be clear, just as Mr. and Mrs. Loving faced criminal prosecution for heading to DC to evade Virginia’s Racial Integrity Act, a same-sex couple resident in Wisconsin is subject to criminal prosecution under Wisconsin law if they go to Iowa or Minnesota and get married.
A lot of parallels are present between the two …
posted by HeyWTF on
I am puzzled why the blog poster confuse the different legal issues as well as political issues under DOMA and ENDA, and somehow he manages to connect those to OBAMA’s options as the head of executive branch. Then he uses that as an evidence of something morally repugnant (by insinuation)?
The post is wrong on so many levels so I don’t know where I can begin to counter, but I suspect the poster isn’t as ignorant as the post suggests on its face. DOMA is something Congress has struggled with for decades, with each failure being justly attributed to Republican-Libertarian obstructionism. Then, why the deceits? What’s the point of your post? That Obama isn’t sufficiently pro-gay as people seem to give credit for? That Democrats take advantage of gay rights issues for political gain while not acting on promises?
Why not disclose your criteria on circumstances where you will give credit where it’s due in the future, so that we can assess your integrity? Spell out now under what executive orders you will consider acceptable, and state that you will apply the same standard to future presidents from any party, for example.
posted by HeyWTF on
I meant ENDA as something Congress had been struggling with for decades, not DOMA. lol.
posted by french62 on
Frankly, I am rather unconcerned regarding what Obama may do regarding the SCOTUS’ decision on DOMA and Prop. 8. The struggle for full inclusion of homosexuals in the institution of marriage will continue to be fought and won in the State legislatures, and State and Federal Courts. There is a tidal wave of positive progress across this great nation. And the supporters of equality and love will win out sooner, rather than later. I am so proud to live in a State, and nation, that can resolve these competing interests in a relatively harmonious way. We will win by “fits and starts” but we will win. And once again, we will become a more perfect union.
posted by clayton on
I’d like to steer away from the legality of an executive and toward the efficacy of one. My understanding of law passed through executive order is that it basically lasts as long as the executive. In Louisiana, former governor Edwin Edwards passed a gay rights law through executive order. It lapsed under his successor,Mike Foster. Another such law was signed by Foster’s successor, Kathleen Blanco. It lapsed under Bobby Jindal. Call me old fashioned, but rather than have my marriage validated by Obama, only to be invalidated by a Republican successor (Santorum?), I’d rather wait for a permanent fix.
posted by TomJeffersonIII on
As a practical matter, the Obama administration has probably just about done all it can do in terms of gay rights legislation at the federal level.
Important progress has been made — and some still can be — but (initially) I suspect much of the progress will be in the hands of the Congress or the States to sort out and (sadly) ignore.
In certain States or Congressional Districts, their is not really the support for gay rights legislation — even something as modest as equal opportunity in employment. That is largely why the ENDA bill has stalled. Yes, their is the issue of gender identity inclusion, but even with just sexual orientation and just employment, its a tough sell in certain States/Congressional Districts.