Second DOMA Challenge Fails

Council Efforts on AIDS Housing

Florida federal court points to precedents in case of lesbians married in Massachusetts

For the second time, a federal trial judge has upheld the federal Defense of Marriage Act (DOMA) against a constitutional challenge. Ruling on January 19 on the government’s motion to dismiss a pending marriage recognition case, District Judge James S. Moody, Jr., of the U.S. District Court in Tampa, found that his court was bound completely by controlling precedents from the Supreme Court and the Court of Appeals for the 11th Circuit, based in Atlanta, and had to dismiss the case.

Moody found that Florida officials have no obligation to recognize a same-sex marriage between Florida residents contracted in Massachusetts.

In a ruling last August, a federal bankruptcy judge in Washington State had reached a similar conclusion, finding that a same-sex couple lawfully married in Vancouver, Canada could not take advantage of federal bankruptcy provisions allowing joint filings by legal spouses.

The outcome in the Florida was fully expected, since a federal trial court must follow higher court precedent. Typically at this juncture a losing attorney would appeal, but according to report published on, the plaintiffs’ representative, Ellis Rubin, a Florida personal injury specialist, has decided not to do so.

“With the present Supreme Court not willing even to hear the Florida adoption case and the possibility of newly appointed Supreme Court judges by the Bush administration being even more conservative, it would not be prudent at this time to continue this effort,” Rubin said.

Earlier this month, the Supreme Court refused to intervene in an 11th Circuit decision that upheld Florida’s ban on adoption by gay and lesbian parents.

According to the report, Rubin reached his decision after meeting with Matt Coles, who heads the Lesbian and Gay Rights Project at the American Civil Liberties Union. The ACLU and other leading gay legal rights groups have focused their efforts on winning marriage rights by litigating under state constitutional protections, a strategy that proved successful in Massachusetts in late 2003.

The Florida case involves Nancy Wilson and Paula Schoenwether, who married in Massachusetts during the brief period when some local jurisdictions allowed out-of-staters to wed. This window closed when Republican Gov. Mitt Romney, an opponent of same-sex marriage, took the position that out-of-state couples could be denied the right to marry under an obscure 1913 state law intended to prevent couples who could not marry in their home states due to miscegenation laws from flocking to Massachusetts, which had no ban on interracial marriage. Though the law became a virtual dead letter in 1967 when the U.S. Supreme Court overturned such bans, it was never repealed. A lawsuit is currently challenging its constitutionality.

Issues related to the 1913 law were not before the court. Wilson and Schoenwether are pressing the issue of whether Florida must honor their valid Massachusetts marriage under the federal Constitution’s “Full Faith and Credit” (FFC) clause, that states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

DOMA, passed in 1996, provides that no state can be required to recognize same-sex marriages contracted in other states, and that the federal government will not recognize same-sex marriages. Its congressional sponsors argued that under the FFC clause, Congress has the authority to pass a “general law” that relieves states of any obligation to recognize marriages performed in other states.

Florida is one of many states that since 1996 have passed their own version of DOMA, which provides that the state will not recognize a same-sex marriage contracted elsewhere. Wilson and Schoenwether returned to Florida after their wedding and asked their local county clerk to accept their marriage certificate for purposes of their status in Florida. The clerk declined and they brought this lawsuit, claiming that both federal and state DOMAs are unconstitutional.

The case raises questions about Congress’ authority to legislate under the FFC clause, how full faith and credit would be applied if DOMA did not exist, and the underlying constitutionality of the federal government and a state government excluding same-sex couples from marrying.

Judge Moody found that a literal reading of the FFC clause provided Congress with the authority to enact DOMA. Moody argued that taking a contrary view would give individual states the power to “create national policy,” contrary to our federal system.

Moody also found that as a federal trial judge he was bound to follow the precedent established by the U.S. Supreme Court in handling Baker v. Nelson in 1972, when it refused to review a same-sex marriage ruling by the Minnesota Supreme Court on the ground that the case did not raise “a substantial federal question.” Such a ruling is considered a decision on the merits of the case, even though the Court did not write an opinion explaining its reasoning.

The precedent established then explains in part why recent marriage litigation has focused on state constitutional claims. Only the Supreme Court has authority to rule favorably on a gay marriage claim as this point.

The plaintiffs argued that the Supreme Court’s recent opinion in Lawrence v. Texas, striking down a state sodomy law as violating constitutionally-protected liberty interests, had supplanted Baker v. Nelson as the relevant constitutional precedent, but Moody was not persuaded, especially in light of the 11th Circuit ruling in the Florida adoption case, which the Supreme Court refused to review. That ruling gave a very narrow reading of Lawrence v. Texas, finding that it concerned only the imposition of criminal penalties for private, consensual, adult homosexual sex. In Lawrence, both Justice Anthony Kennedy, in his opinion for the Court, and Justice Sandra Day O’Connor, in her concurring opinion, emphasized that the Court was not deciding the same-sex marriage question, and O’Connor suggested that there were rational justifications for states to limit marriage to opposite-sex couples.

Moody stated that as a trial judge in the 11th Circuit he was bound to follow the adoption case precedent and reject the argument that Florida’s DOMA violated the Constitution.