The Supreme Court recently announced that in Spring 2013 it will hear arguments on the constitutionality of the federal Defense of Marriage Act and California’s ban on same sex marriage (Prop 8). The Defense of Marriage Act (DOMA) was signed into law by President Clinton in 1996 and “prohibits federal recognition of same sex marriage.” Rulings by the First and Second Circuit Court of Appeals have found DOMA to be unconstitutional in certain regions of the country; however 39 states still prohibit same sex marriage. Thirty of those states have incorporated the prohibition into their state constitutions.
All of these states appear to be on the wrong side of history. Support for same sex marriage is growing within the country and it is just a matter of time before DOMA is deemed unconstitutional and same sex marriage is recognized in federal court. Along with the rulings in the circuit courts, the Department of Justice and the Obama administration had already decided to stop defending Section 3 of the act and voters in three states passed legislation approving same sex marriage. In the meantime advocates for same sex marriage will fight the battles locally, state by state.
Montana is one of the states that has a state constitutional amendment that defines marriage as being between a man and woman. The Montana state supreme court recently decided 4-3 to uphold that amendment. The court’s decision denies same sex couples access to federal benefits like spousal survival benefits, Social Security benefits and the ability to file a joint tax return. If the Supreme Court were to deem DOMA unconstitutional then that would clear the way to have the Montana decision reversed by the court.
The Montana ACLU and the plaintiffs in the case were not disheartened by the ruling. They noted that the court left open the opportunity to re-file a more “specific” suit citing the “state laws that are unconstitutional.” The plaintiffs were echoing the instructions laid out by Montana supreme court chief justice Mike McGrath. Writing for the majority McGrath said, “It is this court’s opinion that plaintiffs should be given the opportunity, if they choose to take it, to amend the complaint and to refine and specify the general constitutional challenges they have proffered.”
The six gay couples that filed the suit in Montana will also be encouraged by the decision of the Department of Homeland Security to give recognition to same sex couples. Back in October, the Department of Homeland Security issued new written guidelines that long term same sex unions would be given positive recognition in immigration cases. DHS Secretary Janet Napolitano said the new guidelines make it clear that the “interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners.” Federal law had denied same sex couples the same residency status afforded opposite sex partners in immigration cases. This is a battle that harkens back to 1979 when Richard Adams sued the INS for residency status for his Australian spouse Tony Sullivan.
The Supreme Court ruling in Summer 2013 will surely impact the Montana case. If it is ruled narrowly then the decision to uphold same sex marriage will apply only to California. In that eventuality the Montana plaintiffs will move forward with filing lawsuits identifying the specific laws they feel are unconstitutional. Mary Leslie, who was unable to apply for death benefits after a partner was killed said, “We won’t stop until every loving couple is treated fairly.”