26 Pages Posted: 11 Jan 2011
Date Written: December 1, 2010
The issue of the recognition of same-sex marriages and the constitutionality of a refusal to recognize such marriages has received considerable attention in the US state courts in the last decade. A number of state courts have ruled that state constitutions require the recognition of same-sex marriages. However, relatively few cases had reached the federal courts and in almost all these cases the restrictions had been upheld. However, two recent challenges to a ban on same-sex marriages in California (Proposition 8) and restrictions of the rights of same-sex couples under federal law (DOMA) have now been successful before federal district courts.
This note examines the recent linked decisions of the Massachusetts district court in relation to the constitutionality of the Defense of Marriage Act (DOMA). The cases involved two separate challenges to DOMA. The first (Gill), from a number of same sex couples married in Massachusetts and survivors of such marriages, argued that due to the operation of Section 3 of the Defense of Marriage Act, the plaintiffs were denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection guarantee of the Fifth Amendment. In the second (Massachusetts), the State argued that DOMA was in breach of the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, and was not – as the federal government argued - grounded in the Spending Clause. The district court upheld both claims and the case is currently under appeal.
Keywords: Same-sex marriage, DOMA, equal protection, Tenth Amendment
Suggested Citation: Suggested Citation
Cousins, Mel, The Defense of Marriage Act (DOMA), Equal Protection and State Authority – Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Dept. of Health and Human Services (December 1, 2010). Available at SSRN: https://ssrn.com/abstract=1718459 or http://dx.doi.org/10.2139/ssrn.1718459