Defense of Marriage Act

By Steve Sanders, who teaches Sexuality and the Law, Family Law, and Constitutional Litigation at the University of Michigan Law School.

Rick Santorum, the former Pennsylvania senator who currently sits near the top of the Republican presidential field, raised eyebrows over the weekend for comments to NBC’s Chuck Todd on same-sex marriage. It’s old news, of course, that Santorum opposes such marriages (he has compared them to child abuse and bestiality). What was noteworthy about these latest comments was Santorum’s casual observation that, under the sort of federal ban he supports, not only could new marriages not be performed, but all existing same-sex marriages would be nullified. 

This comment largely disappeared into the rivers of hype and frivolousness coming out of this year’s Iowa caucuses. Nonetheless, it gives us the opportunity to think seriously about the difference between marriage creation and marriage nullification, and whether they differ as matters of civil rights and liberties. I address this topic in a forthcoming article in the Michigan Law Review titled, “The Constitutional Right to (Keep Your) Same-Sex Marriage.” 

If a federal constitutional ban on same-sex marriage were approved, Santorum was asked, “What would you do with same-sex couples who got married? Would you make them get divorced?” He replied, “Well, their marriage would be invalid. I think if the Constitution says ‘marriages are this,’ then people whose marriage is not consistent with the constitution….” At that point, he literally shrugged. (See the video here.)

Granted, Rick Santorum is no one’s constitutional scholar. Still, it is stunning when someone who is being taken seriously as a presidential candidate (at least for this week) literally shrugs at the idea that the federal government might unilaterally void more than 130,000 perfectly legal marriages. After all, as a federal court observed in 1949, the “policy of the civilized world, is to sustain marriages, not to upset them.” Imagine the indignities and the hellish disruptions to lives, children, and property rights that Santorum’s policy would create. 

Then, ponder the fact that right now we have laws in a majority of states that do pretty much the same thing. 

The gay marriage movement scored two victories yesterday in California, with a federal district court judge rejecting conflict-of-interest allegations in the decision to strike down Proposition 8, and a bankruptcy court holding the Defense of Marriage Act unconstitutional.

In federal district court, Chief U.S. District Judge James Ware held that his predecessor, Vaughn Walker, was not biased in his review of California’s same-sex marriage ban by the fact that he was in a long-term relationship with a man, the San Francisco Chronicle reports.

"It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law solely because, as a citizen, the judge could be affected by the proceedings," Ware wrote.

In U.S. Bankruptcy Court for the Central District of California, a judge issued a “rare and sweeping ruling” holding that two legally married men should be allowed to file for bankruptcy jointly and that the Defense of Marriage Act, which would have precluded joint filing, violates the couple’s equal protection rights under the due process clause of the Fifth Amendment, The Recorder reports.

“In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple,” Judge Thomas Donovan wrote.

Eighteen of Donovan’s 24 colleagues signed onto his ruling, which Penn State Law’s Samuel Bufford, a former bankruptcy judge on that court, called “highly unusual.”

The ruling on Proposition 8 was much less surprising, with legal ethics experts from across the political spectrum dismissing the challenge as “specious as well as desperate,” as Slate’s Dahlia Lithwick put it.