Defense of Marriage Act

Though the point of this blog is to talk about recent developments in the area of family law, we would be bereft if we didn’t take a moment to recognize the life of U.S. District Judge Joseph L. Tauro of the District of Massachusetts. He passed away on Friday at 87 years old.

Judge Tauro presided over two cases attacking the federal Defense of Marriage Act. After finding that DOMA compelled Massachusetts to discriminate against its citizens in order to receive federal funding, and that it was the state’s right to recognize same-sex marriages and afford such couples any rights and benefits derived from that marital status. Judge Tauro’s decision was affirmed by the First Circuit Court of Appeals. The Supreme Court declined to take the case after the decision of U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act defining marriage as between a man and a woman. Judge Tauro’s decision in 2010 could be seen as the first of what became a wave of successful legal challenges to DOMA and, ultimately, legalized same-sex marriage.

The attack on DOMA was not his only major case over his 41 year career beginning with his appointment by President Richard Nixon. Other notable cases include his handling of a class action law suit leading to major reforms in Massachusetts institutional case for developmentally disabled people, as well as his facilitating a settlement involving systemic discrimination in Boston’s public housing system. He had a significant influence on the law through his decisions and the impact those who worked for him and with him.


Mexico Institute
(Photo Credit: Mexico Institute)

The battle over same-sex marriage rights in Pennsylvania has been simmering since last summer when concurrent litigation was initiated in a few different judicial venues. One case was filed in the Middle District of Pennsylvania and involves as plaintiffs eleven couples, two minor children, and a widow to a long-term partner. Having had the winter to conduct discovery, marshal together their legal arguments, and prepare for the final phase of litigation, both sides are coming out aggressively in search of a determination by the court before the June 2014 trial date.

Recently, the plaintiffs filed a motion for summary judgment which prompted a reply and cross-motion for judgment from the Commonwealth. In essence, the Commonwealth is asking the judge to rule in their favor on the basis that legislature has the constitutional right to define marriage as it is articulated in Pennsylvania’s version of the Defense of Marriage Act.

While the plaintiffs seek to invalidate Pa.DOMA on the basis that it violates their due process and equal protection rights under the 14th Amendment of the U.S. Constitution, the Commonwealth points to the legislative intent as demonstrating a legitimate state interest. The plaintiffs hope to use the momentum created by the U.S. Supreme Court’s decision in United States v. Windsor, et al. which upheld the invalidation of the operative portion of the federal Defense of Marriage Act; the Commonwealth is actually citing that case as proof that states have the right to legislatively define marriage as they deem fit.

To mix metaphors, each side’s attempt to win through summary judgment is analogous to throwing an early knock-out punch rather than go through the siege warfare of trial. If the judge decides to rule on the motions, a decision can be made after May 12th. Based on the article written by Dan Packel for, the motions seem to make it likely the June trial date will be moved to accommodate the briefing and argument schedule for summary judgment.  

A determination adverse to the plaintiffs in this case would not eliminate the chance for marriage equality in Pennsylvania; the other cases filed would keep that opportunity open. However, it would be a serious set-back and carefully considered by pending litigation in Pennsylvania and nationally. Based on the outcomes of similar litigation in other states, upholding Pennsylvania’s DOMA and continuing to ban same-sex marriage would be appear be run contrary to prevailing national decisions.


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989;, and on Twitter @AaronWeemsAtty

The United States Supreme Court issued their decision on gay marriage earlier today.  The Court ruled on California’s Proposition 8 ban on gay marriage and the 1996 federal Defense of Marriage Act (“DOMA”), which denied federal benefits to lawfully married same-sex couples, finding that DOMA is unconstitutional and sending Proposition 8 back to California.

The ramifications of these decisions are immense.  By striking down Section 3 of DOMA, the Court has cleared the way for reconciling conflicting state laws on same-sex marriage with federal benefits and tax regulations.  In a 5-4 decision, Justice Anthony Kennedy wrote that DOMA violated gay couples right to liberty and equal protection, “[by] seeking to displace this protection and treating those persons as living in marriages less respected than others…”  From a fiscal perspective, this decision also paves the way for same-sex couples to file joint taxes and claim a spousal share of Social Security benefits, as well as avoid estate taxes related to real estate transfers (one of the issues which brought DOMA’s Constitutionality before the Court).

Worth noting is that DOMA is not entirely off the books; Section 3 of DOMA, which defined marriage, was found unconstitutional, however, Second 2 which recognized that states do not have to recognize same-sex marriages from other states remains in effect.  This aspect of the law was not subject to Constitutional challenge.  The consequence of this section remaining in effect is that it is up to the individual states to decide whether to recognize the same-sex marriage or civil unions permitted in twelve states (plus Washington, D.C.); the states do not have to grant “full faith and credit” to the same-sex marriages of another state.

Earlier this month Delaware became the eleventh state to legalize same sex marriage when they passed Marriage Equity Act in the state Senate.  Passage was fairly close with 12 voting for the Act and 9 voting against it in the Senate, while the House had earlier passed it 23 in favor to 18 against.  Leslie Spoltore has provided the synopsis of the Act on our Delaware Trial Practice Blog as well as a link to the complete Act.


There has been quite a bit of litigation and court decisions related to the Defense of Marriage Act and how it impacts state laws and the ability of states to enact federal laws due to different definitions of what constitutes “marriage;” traditionally, states have been left to decide how to handle domestic issues and the DOMA has been viewed as infringing on that area.

I examined some of those recent federal court decisions involving the DOMA and how they could impact a pending Pennsylvania case for this month’s issue of the Pennsylvania Bar Association’s “Pennsylvania Family Lawyer."