Politics or Protecting Marriage?

GOP legislation in House on same-sex marriage is as political as it is ideological

When 233 members of the House of Representatives voted on July 22 in favor of the Marriage Protection Act, H.R. 3313, they were voting on a significantly different version of the bill than that introduced last October and analyzed in Gay City News last week.

The original bill provided that all federal courts would be stripped of jurisdiction to decide any case involving the “interpretation” of the Defense of Marriage Act (DOMA), a 1996 statute that does two things: (1) relieve the states of any obligation they might have under the Constitution’s full faith and credit clause to recognize same-sex marriages performed in other states, and (2) define marriage as only between one man and one woman for all purposes of federal law.

The amended version, approved by the House and sent on to the Senate for consideration, is at once both narrower and broader than the original version. The amended version applies to cases involving both “interpretation” and “constitutionality,” but applies only to the part of DOMA concerned with interstate marriage recognition.

Thus, if the Marriage Protection Act is passed, a same-sex couple married in Massachusetts who want to go to court to get New York to recognize their marriage would have to bring their lawsuit in the New York state courts, and could not appeal an adverse decision by the state’s highest court, the Court of Appeals, to the U.S. Supreme Court.

On the other hand, if the couple wanted to sue the Internal Revenue Service over its refusal to recognize their same-sex marriage, they could file the suit in federal court, and the Marriage Protection Act would not erect any barrier to their lawsuit. In March, New York State Attorney Gen. Eliot Spitzer issued an opinion that even though same-sex marriage is not permitted under state law, judicial precedents make clear that New York would recognize valid same-sex marriages authorized elsewhere.

Since state courts are authorized and obligated to apply federal constitutional and statutory law to cases pending before them, under a doctrine called “concurrent jurisdiction,” the state courts are fully able to consider federal constitutional challenges to the interstate marriage recognition portion of DOMA. In addition, many constitutional scholars believe that this part of DOMA was not particularly important in any case, because there is considerable doubt that the full faith and credit clause would compel marriage recognition over the strong public policy objections of a state, and some even argue that it does not apply to marriage recognition at all, for complex reasons of constitutional theory that are beyond the scope of this brief synopsis. Furthermore, state courts (and the U.S. Supreme Court) would certainly have jurisdiction to rule that the “jurisdiction stripping” Marriage Protection Act is itself unconstitutional.

Thus, the vote on the amended version of the Marriage Protection Act could be characterized as entirely symbolic, giving House Republicans a chance to go on the record in opposition to same-sex marriage and to put Democrats and moderate Republicans on the record for electioneering purposes, without having made substantive changes of any significance in the existing legal situation.

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