The Imminent Demise of Section 2 of the Defense of Marriage Act

On July 22, a federal district judge in Ohio issued a temporary restraining order (TRO) requiring that the Ohio Registrar list on an imminent death certificate the surviving same-sex spouse of a terminally ill man, despite state law precluding recognition of same-sex marriage. In striking down the relevant provisions of Ohio law as violating principles of equal protection, Judge Timothy Black relied heavily on United States v. Windsor, the recent decision by the U.S. Supreme Court striking down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as between one man and one woman. The Supreme Court’s holding in Windsor left intact Section 2 of DOMA, which expressly permits states to disregard same-sex marriages granted in other states. However, as this case illustrates, and as Justice Scalia anticipated in his dissent in Windsor, the Court’s rationale in striking down Section 3 of DOMA serves also to dismantle Section 2.

In this column, I will explain the facts of the case and the reason the judge issued the TRO. I will then provide a brief background of Section 2 of DOMA. Finally, I will discuss the significance of the ruling and its likely effects on the remaining portion of DOMA.

The Background of Obergefell v. Kasich

Plaintiffs James Obergefell and John Arthur are Ohio residents who have been together in a committed relationship for over twenty years. Arthur suffers from end-stage amyotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease) and is receiving hospice care. Shortly before the plaintiffs filed this case, they flew to Maryland and were legally married there before flying back to Ohio the same day. Although Maryland recognizes their marriage, their home state of Ohio does not.

Arthur’s death is imminent, and pursuant to Ohio laws, his death certificate will list his “marital status at the time of death” as “unmarried” despite his Maryland marriage to Obergefell. The couple filed this lawsuit to enjoin the Registrar from issuing a death certificate that does not list Obergefell as the surviving spouse.

In addition to seeking preliminary and permanent injunctions, the plaintiffs requested that the judge issue a temporary restraining order, which, if granted, would have the same effect as an injunction, albeit on a more short-term basis. The advantage of a TRO is that it would prevent the state of Ohio from acting to frustrate the purpose of the action. Because Arthur’s death was imminent at the time of filing, any delay could have resulted in the Ohio Registrar’s recording a death certificate without Obergefell listed as the surviving spouse.

The party moving for a TRO must prove four factors:

1. A strong likelihood of success on the merits;
2. A risk of the party’s suffering irreparable harm if the injunction is not issued
3. That issuance of the injunction would not cause substantial harm to others; and
4. The public interest would be served by issuing the injunction.

The heart of the district court’s reasoning lies in its analysis of the first factor. The court cited the U.S. Supreme Court’s decision in United States v. Windsor holding that DOMA Section 3 “was unconstitutional because it violated equal protection and due process principles guaranteed by the Fifth Amendment.” The district court also looked to an earlier Supreme Court decision, Romer v. Evans, where the Court struck down a Colorado law effectively classifying that state’s citizens on the basis of sexual orientation with no legitimate governmental purpose.

Applying the reasoning of these two cases, Judge Black found that Ohio’s laws that purport to recognize all out-of-state marriages (including those between first cousins and those between minors, neither of which Ohio authorizes) except for same-sex marriages violate the Constitution’s equal protection mandate.

Section 2 of DOMA

Although the court’s order granting the TRO does not expressly mention Section 2 of DOMA, its implications for that federal law are clear. The reasoning strikes down Section 2 as inconsistent with the Court’s decisions in Windsor and Romer.

Section 2 provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

There has been some debate as to whether Section 2 of DOMA has any actual effect beyond what was already true under federalism principles. That is, some commentators have argued that states already had, prior to DOMA, the power to define within their own jurisdiction what constitutes marriage and what does not, so long as these definitions do not violate the U.S. Constitution. According to these commentators, prior to Windsor, it was unsettled whether excluding same-sex couples from marriage furthered a legitimate state interest. As Judge Black correctly recognized, Windsor clarified that there is no legitimate state interest in classifying people on the basis of sexual orientation for different treatment under the law.

Also often discussed in this context is the Constitution’s Full Faith and Credit Clause, which provides: “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.”

In turn, Supreme Court jurisprudence on this Clause has established that the judicial opinions of one state must be given full faith and credit in other states, but one state’s laws may not necessarily override the laws of another state, under a “public policy exception.”

The effect of this jurisprudence of same-sex marriages across states is generally that divorces and adoptions involving same-sex couples who are legally married in one state must be given effect in other states, because they involve a court order. On the other hand, same-sex marriages themselves are merely public records, not judicial proceedings, and as such are subject to the public policy exception.

Section 2 of DOMA was ostensibly passed pursuant to Congress’s constitutional power to prescribe the effect of one state’s laws in another state. However, under the Supreme Court’s reasoning in Windsor, Section 2 likely violates the Equal Protection Clause for the same reason that Section 3 does.

This is the conclusion to which Judge Black came in order to grant the TRO in Obergefell v. Kasich, although he considered only the specific Ohio laws that were at issue, rather than DOMA more generally.

The Significance and Likely Effects

Although a TRO requires only a strong likelihood of success on the merits (rather than a complete determination), the decision to issue one in this case may be merely the first drop in a deluge of litigation challenging DOMA Section 2. Even if the provision of that federal law is not attacked directly, multiple attacks on individual state laws prohibiting the recognition of same-sex marriage could potentially have the same effect as they are appealed to higher courts.

Some commentators have pointed to the distinction between the right to marry and the right to remain married, calling for arguments based on due process, rather than equal protection, principles. However, I believe that Supreme Court jurisprudence applying equal protection principles to the classification of same-sex marriages is far better established than that applying due process, so that route is more likely to find success in the courts.

Ultimately, I think that Judge Black reached the correct conclusion (and, fortunately, the fair one) in this case, and I predict that James Obergefell and John Arthur and the hundreds and thousands of same-sex couples faced with similar situations will soon find that their legal marriages will receive fair and equal protection of the laws.