Captain's Log

The 14th Amendment and the Defense of Marriage Act

Today is the 141st anniversary of the 14th Amendment to the Constitution of the United States. Under the Equal Protection Clause of the amendment, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws."

According to the United States Government, the 14th Amendment "greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment."

And then along comes Congress, and in a fit of ignorance in 1994, enacts the Defense of Marriage Act. I'm no lawyer, but if I played one on television, it would seem to me that the 14th AMENDMENT trumps the Defense of Marriage ACT.

If I read the 14th Amendment correctly, the United States Congress is more than compelled to use its constitutional power to force states to recognize marriages performed in other states - same-sex or otherwise. But DOMA clearly states that no state has to recognize same-sex marriages performed legally in other states.

So, listen up Amendment 14~! Don't break out the champagne just yet. We have acts to consider. Or do we?

I guess a brief history lesson is necessary at this point. More, from the Library of Congress:

The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to "all persons born or naturalized in the United States," which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws.

By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.

Expanding on the information provided by the Library of Congress, and making it easier for the average citizen to read, there's this from Wikipedia:

The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves, and their descendants, from possessing Constitutional rights and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954).

Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away.

The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions.

And this, specifically regarding the 14th Amendment to the United States Constitution, and the Defense of Marriage ACT.

The constitutional issues most relevant to DOMA are the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is concerned with the definition section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the second section of DOMA.

A right to marriage -- at least "marriage" defined as one man and one woman -- overriding the provisions of state law, was found in Loving v. Virginia.

Seems to this television lawyer that Congress over-stepped its bounds on this one. DOMA appears to violate the 14th Amendment, violating the Equal Protection and Due Process Clauses of the Amendment.

But wait, it gets more interesting...

On Wednesday, Massachusetts filed a lawsuit challenging DOMA, titled Commonwealth v. United States Department of Health and Human Services. Here's a pdf copy of the complaint.

In the lawsuit, Massachusetts Attorney General Martha Coakley alleges DOMA violates the 10th Amendment to the United States Constitution, specifically the Spending Clause of that particular Amendment. The 10th Amendment, by the way, is the 12th article and the 10th and final amendment to the Bill of Rights.

Among several things, the lawsuit argues DOMA requires the state to violate the constitutional rights of its citizens by directly interfering with Massachusetts' longstanding sovereign authority to determine who it determines are "married" and places the state in the position of choosing whether to adapt its programs to fit federal law or limit the ability of the tax-paying residents of Massachusetts from having full equality, as enshrined in the Constitution of the United States of America.

It seems clear to this journalist (and television lawyer) that the United States Congress cannot compel the various states to violate their responsibilities to uphold the constitutional rights of their own citizens, in violation of both amendments.

Nor can they write an act that violates at least two amendments to the Constitution of the United States.

//

Cross-posted from Bilerico.com

Same-Sex Marriage Law Goes into Effect in Washington, D.C.

At 12:01 a.m. today, our nation's capital began recognizing same-sex marriages performed in other states. Issuing marriage licenses to same-sex couples in the District of Columbia, however, remains illegal.

The D.C. City Council overwhelmingly approved the new ordinance in a 12-to-1 vote in May. Democratic Mayor Adrian M. Fenty signed the bill into law.

And so that was that. Right? Wrong...

Laws passed by the District are subject to a 30-day review period by the United States Congress. That review period has now expired, but not after a few homophobes tried to get in the way. Several Republican members of the U.S. Congress objected to the law, but Democratic leaders refused to take up the issue.

As our own Michael Crawford said in a detailed post on how this has played out in our nation's power center, it is "worthy of a soap opera."

In June, the D.C. Board of Elections and Ethics (BOEE) issued a ruling denying a request by a group of anti-gay clergy members to collect signatures to place on the ballot whether or not the District should recognize same-sex marriages performed in other jurisdictions.

The BOEE cited a provision in D.C, election law that prohibits a popular vote on a matter covered by the D.C. Human Rights Act - which includes sexual orientation.

The drama continued for a while, until the D.C. Board of Elections and Ethics said enough.

Bilerico's Nancy Polikoff updated us, with this post:

DC Superior Court Judge Judith Retchin cleared the path for the D.C. law recognizing same-sex marriages from other jurisdictions.

The 15-page opinion rejects every ground put forward by Reverend Harry Jackson and others, who asked the judge to allow a referendum on the law to go forward and that, pending the referendum, the law be prevented from going into effect.

And so the marriage equality football moves two steps forward, one step back. Even the conservative Washington Times newspaper did an in-depth article on the issue today.

The D.C. Council has openly acknowledged their next move is to legalize marriage equality in the District.

Same-sex couples currently can get married in Connecticut, Massachusetts and Iowa; with Maine, New Hampshire and Vermont following suit in the next several months.

The city will also recognize the marriages of 18,000 same-sex couples in California before Proposition 8 reversed the legalization of gay marriage in the Golden State.

Legal marriages in foreign countries will also be recognized.

The rights include the ability to file "state" taxes jointly, hospital visitation rights, benefits for spouses of employees at private companies and in District government, and spousal immunity from testifying against each other.