The issue of federal recognition of civil unions is really two questions in one: Will the federal government consider civil unions as marriages for the purposes of federal law? Who gets to decide?
As to the first question, there are three options: yes, no, and sort of.
Yes. Civil unions are the only recognition options for gay couples in 8 states, including California (stay tuned, though!) and New Jersey, which are home to particularly large gay populations. Their civil unions are identical to marriage and provide all the state benefits of marriage. Therefore, the federal government has little reason to distinguish between official marriages and other official unions that are identical in all aspects but name only.
The problem remains that the federal government has never really recognized any civil unions — gay or straight — as married. It never had to, primarily because heterosexuals always had the marriage option.
No. Civil unions are not marriages and DOMA Section 3 refers only to marriage: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
The problem with this argument is exactly what hyper-textualists would like: dismissing civil unions are not marriages is just way to formal, too simplistic, and incomplete.
Sort of. DOMA's wording is keyed to the thousands of clauses in federal law that refer to couples. Notably, only slightly more than half of those clauses use the word "marriage," or a derivative thereof. In many cases, the IRS, INS, and other agencies refer to "spouse." Two individuals in a civil union can still be considered "spouses" even if they are not officially married under state law.
The problem with this argument is that, if adopted, it will lead to even more confusion. And yet, it seems to be the conclusion that makes the most sense the way the current laws are written. To our great regret, there are federal statutes that include a marriage trigger; those triggers are just part of the reasons why marriage rights are so important. If words in statutes are to be given any meaning, we can easily distinguish between marriage triggers and "spousal" triggers, allowing the federal government to recognize civil unions for some parts of federal law. But this kind of haphazard application of federal law is a bad idea: it will cause inefficiencies, fraud, mistakes, and injustice.
The other option is to rewrite federal law.
This leads us to the second question: Who gets to decide what the federal government will do? Again, there are three options: the executive, Congress, a little bit of both.
Executive. We learn in elementary school that Congress makes the laws and the President executes the laws, but that quaint truism misses the complexity of the administrative regulatory state, where Congress may write a law, but all the real interpretations of it and the specific instructions on implementation come down from the administrative agency or agencies tasked with turning Congress's will into reality. By way of example, think about how now-Senator Elizabeth Warren's Consumer Financial Protection Bureau wrote all the detailed regulations of the Dodd-Frank financial law. So, if the President and the executive branch decide how administrative agencies are going to interpret the laws and regulations under which they operate, it may be up to the President to decide how the INS will interpret spousal visa rules or how the IRS will interpret joint tax filing or joint bankruptcies or how the Social Security Administration will interpret its survivorship rules (the rules that give social security benefits to surviving spouses of the deceased).
This argument makes a lot of sense. But any administrative interpretation of federal law could be challenged in the courts and rejected as an improper executive overreach contrary to Congressional intent. There are a host of court precedents about how to adjudicate agency interpretations of federal law and, therefore, we may be looking at several years of litigation about administrative rule-making.
Congress. Congress has a role to play, as well. Not only can Congress pass a law that requires administrative agencies to interpret statutes in a certain way, Congress can rewrite the federal laws that administrative agencies are interpreting. House Republicans could band together with a future Senate to pass an omnibus rewrite that puts the word "married," or a derivative thereof, in every relevant federal law.
A little bit of both. It seems clear that the fate of the federal recognition of civil unions will rest in the combined hands of the executive, Congress, and the courts. At a minimum, then, there will be a lot more work in a post-DOMA world.
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Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.