Berman & Asbel, LLP

Despite Maine vote, Massachusetts case could have larger implications in gay marriage issue

Yesterday, voters in Maine voted to repeal a law that would have legalized same-sex marriage in that state.  This is a setback to those who believe in equal rights to marry but it is just one of many steps that will occur as this issue develops across America.  A court challenge that could have even wider implications but which is not getting as much publicity yet is  the case of Commonwealth of Massachusetts v. United States.  This case is the first challenge by a state government against the federal Defense of Marriage Act which was signed into law in 1996 by President Bill Clinton.  You can read more about this specific case and DOMA in this linked article by Massachusetts attorney David Gabriel.  DOMA does two things:  One - it defines marriage under federal law as a union of one man and one woman and defines "spouse" as a husband or wife of the opposite sex.  Two - DOMA provides that states are not required to recognize same-sex marriages authorized under the laws of other states.  This case is the first time that a state is challenging the constitutionality of the federal DOMA statute.  Essentially, the Commonwealth of Massachusetts is arguing that regulation of marriage is a power reserved to the states and that by denying recognition of certain marriages it authorizes, DOMA is infringing on the rights of a state, Massachusetts, to regulate marriage and to have its laws respected fully as the laws of other states are respected.

The legal issues in the case are complex but practical implications of it are clear.  If Massachusetts succeeds in this challenge and DOMA is struck down, then a same-sex marriage that is performed in a state that permits them will most likely have to be recognized by other states under the Full Faith and Credit clause.  If states are then required to recognize same-sex marriages, whether or not they can be entered into in those states, there will be much less reason for states to continue to prohibit same-sex marriage directly.  One of the reasons that this case will be explosive politically is that  it places social conservatives and states' rights advocates in opposition to each other and could make for some unusual political alliances.

This issue will play out in the courts and in the political arena for years to come but in the meantime,  people have to get on with their lives so what can same-sex couples do to protect their rights as partners and parents in a family unit? The options vary state by state and in my next post, I will describe some of the options available in Pennsylvania where I have my law practice.

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