Filed under: DOMA trials
Yesterday, the Federal Election Commission (FEC) issued an opinion ruling on an aspect of election law that relies on Section 3 of the federal Defense of Marriage Act to determine whether a married couple can contribute to political campaigns jointly. The FEC generally allows married couples to donate jointly to campaigns, so that the amount doesn’t exceed the cap on individual contributions imposed by federal law. But they were asked to determine if same-sex married couples may legally do the same thing, and their decision says that no, same-sex married couples can’t do this until Section 3 of DOMA is repealed or struck down as unconstitutional by the Supreme Court (a possibility given that they’re reviewing United States v. Windsor now and a decision is expected by late June.
The opinion noted that the FEC doesn’t define “spouse” itself and its standard practice is to rely on state law to determine whether a couple is legally married. However, the point of Section 3 of DOMA was to provide a uniform definition of “marriage” and “spouse” that has the same application for all federal laws. So, as the FEC is obligated to follow DOMA’s restrictive definition of “spouse”, it has to interpret the federal regulation at issue differently. Instead of simply allowing for joint contributions, with DOMA in place, the same-sex couple would be considered to have made “a contribution in the name of another person”, which is illegal.
So, for now, the FEC has to follow DOMA, but the issue will probably be reconsidered after the Supreme Court issues its decision in Windsor:
The FEC’s ruling cited the Defense of Marriage Act’s definition of ‘spouse’ — being only between one man and one woman — as the determining factor that would preclude same-sex couples from recognition under federal regulations. Pointing to the upcoming Supreme Court decision, the FEC intends to revisit the question once the high court rules later this year.
The request from Winslow came as an olive branch to independent-minded Massachusettsians, who may warm up to his campaign following a more open social values platform. Compared to his Republican competitors: Gabriel Gomez, a former Navy SEAL turned politician, is in favor of same-sex marriage whereas Michael Sullivan, a former U.S. attorney, recently shifted his stance on the issue.
Former FEC officials had filed an amicus brief in the Windsor case pointing out how Section 3 of DOMA affects, and sometimes infringes on, free speech. The brief addressed this issue, along with others that affect campaign financing and federal election practices. Citizens for Responsibility and Ethics in Washington (CREW) filed its own amicus brief in the case: CREW is a Congressional ethics watchdog group, and its brief pointed out the myriad ways in which DOMA’s restrictive definition of marriage interferes with enforcing ethics laws and regulations.
The FEC makes a point to say that the issue will be addressed again after Windsor, and a footnote in the opinion also suggests that the Supreme Court’s resolution of Hollingsworth v. Perry, the Prop 8 case, could affect the FEC’s approach to enforcing federal election regulations in the context of same-sex marriage. The decision in Perry is also expected in June.
Federal judge puts immigration-related challenge to DOMA on hold pending Supreme Court’s decision in Windsor
By Scottie Thomaston
A federal judge has stayed a class-action challenge to Section 3 of the federal Defense of Marriage Act as it relates to immigration laws, pending the Supreme Court’s resolution of Edith Windsor’s case, United States v. Windsor. The case, Aranas v. Napolitano, was allowed to move forward earlier this week, when the judge issued orders certifying the case as a class-action and permitting the plaintiffs to raise an equal protection challenge to the law. Also among those orders, the judge denied a request for a preliminary injunction barring enforcement of possible deportation while the case is pending in federal court, writing that Immigration and Customs Enforcement can use its prosecutorial discretion in deciding which cases warrant immediate action. This would have meant that the government might not actively prosecute cases involving same-sex marriages until the constitutionality of Section 3 of DOMA is definitively resolved.
The new filing is an order addressing the Justice Department’s motion to stay the case until the Supreme Court decides Windsor. After weighing the factors that a federal judge has to consider when deciding on a motion to stay proceedings, the judge ruled that waiting for a resolution in Windsor would not subject the plaintiffs to irreparable harm, and the Supreme Court’s final decision may end up providing important guidance. This is especially likely, considering that the Court asked the parties to brief and argue questions about Article III standing and the Court’s jurisdiction in challenges to Section 3 of DOMA: if the Supreme Court doesn’t think there are litigants with standing to defend the law, that will impact the course of this case in federal district court as well.
Nothing else will happen with the case until the Supreme Court decides Windsor. Today, the Court heard its last two cases for this term. They won’t sit for oral arguments again until October, though they will continue releasing opinions until late June. For big, contentious cases, the Court usually will not release opinions until the last couple of days of the term. This is generally because there may be more than one or two opinions, or because some of the more complicated cases involve several different legal issues. So while there’s nothing preventing the Court from releasing opinions in the marriage cases at any point from now until the end of June, most Court-watchers anticipate decisions coming later rather than sooner.
h/t Kathleen for this filing
By Scottie Thomaston
On Friday, a federal judge in California issued orders that will allow a lesbian binational couple to challenge Section 3 of the Defense of Marriage Act in a class-action lawsuit. In a series of orders released Friday in Aranas v. Napolitano, the judge certified the class-action suit, denied a request for a preliminary injunction barring enforcement and deportation, denying motions to dismiss the equal protection claims, and granting the motion to dismiss thee due process claim.
Aranas is one of the few DOMA cases that are still ongoing while the Supreme Court is reviewing United States v. Windsor, an estate tax-related challenge to the Act.
The plaintiffs are same-sex binational couples impacted by Section 3 of DOMA, the federal definition of marriage, which does not recognize their legal marriages; refusal to recognize their marriages could lead to deportation:
DeLeon claimed in the lawsuit that she was eligible to obtain a green card, but wasn’t able to get a waiver she needs to obtain residency here because the U.S. government doesn’t recognize her same-sex marriage to an American.
Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which filed the suit, said he hopes the decision will lead the government to reconsider visa applications by same-sex couples.
DeLeon asserted in a statement Saturday that her visa application was denied “solely because we have a same-sex marriage.”
“Hopefully our long ordeal is now close to an end and we can stop living in fear of being forced to leave the country,” she said.
The order certifying the class-action lawsuit defined the class as:
All members of lawful same-sex marriages who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. by the Department of Homeland Security solely due to § 3 of the Defense of Marriage Act, 1 U.S.C. § 7
Since the judge denied the preliminary injunction, the law remains in force throughout the proceedings. The judge did note, though, that DeLeon has demonstrated a likelihood of success in challenging the merits of the constitutionality of Section 3 of DOMA, even after pointing out that the district court is bound by Ninth Circuit precedent that requires judges to review laws that classify on the basis of sexual orientation using only rational basis review, the most lenient form of judicial review under equal protection. The Supreme Court could, of course, decide that sexual orientation is a suspect classification and laws classifying people on that basis should be subjected to a more rigorous form of review, but they’ve not yet definitively decided that question either way at this point, and the Ninth Circuit has. Since these are just preliminary orders, all that’s been decided is that the case can move forward as a class-action challenge under equal protection principles.
The case is being heard in district court in the Central District of California, and the judge is Consuelo B. Marshall.
h/t Kathleen as always for these filings
Order on motions to dismiss:
Order granting class certification:
Order denying preliminary injunction: