Under U.S. v. Windsor, Section 3 of the Defense of Marriage Act is unconstitutional and we are left with no broadly applicable federal statutory definition of marriage. What we have are 13 states and the District of Columbia, which now grant marriage licenses to same-sex couples, and several other countries (including neighboring Canada) in which such licenses are also available. At this point, there are thousands of same-sex couples living in the United States who are married, although some portion of them are living in states that do not recognize their marriage. The question now is how these same-sex couples are to be treated by the federal government.
The quick response of the Obama Administration has been to say that for certain purposes, it is clear that the federal government will treat them as married regardless where they are living. For example, the Office of Personnel Management has moved quickly to made spousal benefits available to same-sex spouses of federal employees in the executive branch, the personnel offices of both houses of Congress have done the same, presumably judicial branch employees, whose benefit plans are also administered through OPM, will also fall into line. The Defense Department has indicated that military personnel with same-sex spouses will also be treated the same as married personnel with different-sex spouses. More complicated questions arise about various federal program that have, either by virtue of statutes, regulations, or customary practices, determined the marital status of people based on where they are domiciled, and federal programs governed by statutes or regulations that either expressly or by implication extend only to different-sex married couples.
My response to this situation is to argue, first, that any existing statute, regulation or policy that might be construed to treat same-sex married couples differently should be considered presumptively unconstitutional under Windsor unless there is an independent policy justification for such treatment. And I would argue that in spite of Justice Kennedy’s failure in his opinion for the Court to specify the level of judicial review he was applying to determine whether Section 3 was unconstitutional, it was clearly something other than minimalistic rational basis review. As in Romer and Lawrence, it is hard to make sense of Windsor as a matter of legal reasoning without characterizing the judicial review in these cases as not being so deferential as the courts normally are when it comes to reviewing economic regulations, for example. This would mean that some burden would be placedon the government to justify differential treatment by reference to non-discriminatory policy concerns.
I would make a further argument, going to the issue of whether married same-sex couples living in states that don’t recognize their marriage are entitled to federal recognition. We are one country. True, we are a democratic republic under which many powers and prereogatives are preserved for the states, and this federalism concept actually played a role in the Windsor decision. Justice Kennedy emphasized the traditional role of states in deciding who could marry as being improperly invaded by Congress when it decreed a second-tier status for same-sex marriages authorized by the state, by denying them all federal benefits. On the other hand, one may argue, if a marriage was lawful where it was contracted, then the federal government should recognize it wherever that married couple ends up living or working or traveling, otherwise there is a significant undermining of the effectiveness of federal law.
Here I may seem to be borrowing a leaf from the book of DOMA’s defenders,who argued that DOMA was justified as establishing uniformity nationwide for federal benefits eligility by adopting one nationwide federal marriage definition. If so, then so be it. Why should a same-sex couple who marry in New York and eventually retire to Florida be denied the full benefits of the Social Security system because Florida refuses to recognize their marriage?
The Respect for Marriage Act, now pending in both houses of Congress, would quickly resolve this problem by establishing the “place of celebration” rule as a uniform federal rule for determining whether a marriage is valid for purposes of federal law. But I would argue that anything other than a “place of celebration” rule would raise serious equal protection concerns under the 5th Amendment, and that to avoid litigation, the Obama Administration should adopt it as the universal rule for determining eligiblity for federal benefits and any obligations imposed on married couples under federal law. Why should a high federal official who lives in Virginia but married a same-sex partner in Maryland or D.C. have any less of an ethical obligation regarding conflicts of interest and disclosure of financial resources than such an official who lives with her spouse in Maryland or D.C.? Why should a same-sex couple married in California but living in Arizona be deprived of whatever benefit they might derive from filing federal income taxes as a married couple (and, conversely, why should the federal government have to forego whatever financial benefit it would derive by application of the federal “marriage penalty” to those same-sex married couples living in Arizona whose combined income is high enough to generate the extra taxes due)?
I think we should be giving Windsor a broad reading to make presumptively unconstitutional any unequal treatment of same-sex married couple for any purpose of federal law. And I wonder whether anybody would have Article III standing to challenge a decision by the Obama Administration to do that? I recognize that legal challenges would probably be a secondary concern for the administration, which might be more worried that an adverse reaction to such a stance by Congressional Republicans would make it even that much harder than it is now to achieve any substantive legislation? Would Republicans hold the next federal budget hostage to a provision barring the government from spending any money for benefits to same-sex married couples residing in states that don’t recognize their marriages? I wouldn’t put it past them, even though such legislation would face the same constitutional infirmities as DOMA, and would certainly be open to attack in federal court by same-sex couples who would be deprived of benefits as a result.