Most of the articles in this blog are designed to inform potential clients of matters that may benefit them. This article is a bit of a departure; I’m commenting on a case that was just ruled on that may have long-term implications and may be of more interest than benefit.
On July 8, a federal court in Massachusetts ruled that the federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage, was unconstitutional.
The court’s reasoning is that the Act interferes with the states’ traditional power to define marriage, improperly creating classes of same-sex and mixed-sex marriages, and that there was no reasonable grounds for Congress to do so.
This ruling applies only in Massachusetts unless appealed. It may, however, have other implications for Oregon and Washington.
Although neither Oregon nor Washington allow single-sex marriage, both allow “almost-marriage” domestic partnerships. Under current federal law, these are not treated as marriages for any federal purpose. Because the states don’t call these partnerships marriages, I don’t expect that a court would require the federal government to call them marriage either. Unless there are new developments in the law, therefore, I doubt that the current form of Oregon and Washington domestic partnerships could obtain federal benefits related to marriage.
On the other hand, there is a possibility that a court could rule that if a state has domestic partnerships, it must recognize them as marriages. That was how the Connecticut courts ruled when Connecticut’s civil union law was challenged, essentially, as separate but unequal. This would, however, require a ruling under the federal constitution, which Connecticut didn’t need to do because it ruled under the state constitution. The Oregon constitution has been amended to prohibit single-sex marriage and the Washington courts have already refused to require single-sex marriage.
I think there is a reasonable chance a federal court might, under the influence of the Massachusetts opinion, rule that either Oregon’s or Washington’s domestic partnership laws violate equal protection. I am not certain, however, that the “no rational basis” finding of the Massachusetts court would be the best argument. Instead, in my opinion, the better argument is to work off of a few cases that have held that marriage is a fundamental right, and that equal protection law therefore requires strict review.
On the other hand, courts in both Washington and New York essentially have ruled that only mixed-sex marriage is a fundamental right, and the current Supreme Court may have shifted against single-sex marriage with the appointment of the Chief Justice and Justice Alito. That makes this a tough one to call in advance.
Based on this, I wouldn’t be surprised if, after the federal courts in California rule on their single-sex marriage amendment, a case is filed in Oregon or Washington. I won’t predict how it would wind up.