| Some states are considering state-level ?Defense of Marriage? Acts in response to the Supreme Court?s Lawrence decision and the Massachusetts Supreme Court same-sex marriage ruling. The idea is to preclude similar rulings by state courts, as well as to prevent the creation or recognition of ?Marriage Lite? (i.e. civil unions) by public entities. I am undecided as to whether such laws make sense, but I certainly prefer to see this issue addressed at the state, as opposed to federal, level. (The arguments of Rick Garnett, notwithstanding. There are good arguments against state DOMAs, but there are also very bad ones. This morning, for instance, I heard an argument (by a lawyer, no less) that state DOMAs were bad because they could be used to challenge the private provision of benefits to same-sex partners. Specifically, he claimed that passage of a state DOMA would facilitate a legal challenge to a private employer for extending the same health benefits to domestic partners that are extended to spouses under the company health plan. He also claimed that a hospital might be sued if it allowed spousal visitation rights to domestic partners. This struck me as highly dubious, so I decided to check out the language in question, and this confirmed my suspicions. The DOMA introduced in Ohio, for example, provides, in relevant part: - The recognition or extension of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, . . . that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio. Nothing in . . . this section prohibits the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes.Setting aside the merits of gay marriage, I do not see how such language could be read to prevent the private provision of health or other benefits to domestic partners. Unless I am missing something, this language is clearly confined to the provision of benefits by government entities. I understand why advocates of gay marriage and/or civil unions wish to defeat such legislation, but they should not resort to fallacious legal arguments to do it. -- Posted by Juan Non-Volokh to The Volokh Conspiracy at 12/3/2003 11:40:20 AM Powered by Blogger Pro |
