December 2012 Church & State | People & Events

A federal appeals court has struck down the Defense of Marriage Act (DOMA), noting  that American law recognizes a distinction between civil marriage and “holy matrimony.”

DOMA, which was passed by Congress and signed into law in 1996 by President Bill Clinton, bars federal recognition of same-sex marriages and says states cannot be forced to recognize such unions from other jurisdictions.

The 2-1 ruling was issued Oct. 18 by the 2nd U.S. Circuit Court of Appeals. The court majority held that the law is unconstitutional under the Con­stitution’s Equal Protection Clause.

Although the ruling did not hinge on issues related to church-state separation, the majority opinion did contain an interesting passage.

Judge Dennis Jacobs drew a distinction between civil marriages and “holy matrimony.” The latter, he wrote, should not be a matter that concerns the government.

“Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition,” Jacobs wrote. “But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status – however fundamental – and New York has elected to extend that status to same-sex couples. A state may enforce or dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.”

Jacobs’ observation is relevant because much of the opposition to same-sex marriage stems from interpretations of biblical passages or statements from religious leaders, such as the pope. Americans United has argued that civil law should not be based on religious rationales.

AU has also pointed out that in the states that permit same-sex marriage, no house of worship can be compelled to perform such unions. The First Amendment, AU says, protects the right of churches to decide which couples they will marry.

The case, Windsor v. United States, was brought by Edith Windsor, an 83-year-old lesbian who sued the federal government, asserting that she had been unjustly charged more than $363,000 in estate taxes because she was denied spousal deduction benefits.