Tuesday, April 19, 2011

Enforcing but Not Defending DOMA

Mark Tushnet

The decision by the House leadership to hire (expensive) outside counsel to defend DOMA brings back some questions about the Obama administration's position. (One reason I'm a bad blogger is that it takes me time to think through what often seem to me complicated legal questions.) One such question is whether the administration's decision not to defend DOMA but to enforce it makes sense.

I've wondered about what it actually means to "enforce" DOMA. It's easy enough to figure out what it means to say that you're not going to enforce a criminal statute that you think unconstitutional -- you just don't prosecute anybody under it (and maybe you pardon people already convicted under the statute). But DOMA doesn't work like that. One "non-enforcement" would be this: A U.S. citizen marries a non-U.S. citizen of the same sex in Massachusetts, and -- after complying with all the other prerequisites -- the non-U.S. "spouse" applies for naturalization as a spouse, and the Citizenship and Immigration Service goes through all the steps (including administering the naturalization oath) to the applicant. Here's another: A same-sex couple married in Massachusetts files a joint tax return, and the IRS accepts it. (But: what if each member files an individual return, out of the belief that DOMA prevents them from filing jointly? Does "non-enforcement" require the IRS to let them know that they could file a joint return? How would the IRS know or find out that two people of the same sex residing at the same address were married?)

Here's the hardest problem, though there may be a solution: The administration refuses to enforce DOMA by giving spousal benefits available to government employees, to the same-sex spouse of such an employee. The problem is that this might violate the Appropriations Clause, which says, "No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law." The question is whether there is a "Law" appropriating money to pay the spousal benefits. Maybe there is (in some sort of general appropriation for benefits for federal employees). But, I'd have to know more about the appropriations statutes to be confident that there would be no constitutional problem with providing the benefits.

Taking the complexity of sorting out what exactly "non-enforcement" of DOMA entails into account, my tentative conclusion is that there's nothing particularly odd about saying that you'll refuse to defend DOMA but continue to enforce it.

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