On June 26, 2013 the United States Supreme Court, in United State v. Windsor, 2013 WL 3196928 (2013), upheld the ruling handed down by the United States 2nd Circuit Court of Appeals, which struck down Section 3 of the Defense of Marriage Act (110 Stat. 2419 ; “DOMA”) in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), as being in violation of U.S. Const. Amend. V.
Section 3 of DOMA amended 1 USCA § 7 (West 2013) to be as follows:
“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 Court held that such a provision was in violation of the “Due Process” and “Equal Protection” principles of U.S. Const. Amend. V & XIV (principles recognized and enhanced by the judicial branch, stemming from the clauses “no person shall . . . be deprived of life, liberty, or property, without due process of law” and “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”), in the fact that state laws (particular in certain states), which are the near exclusive regulators of domestic matrimonial affairs, had conferred “a dignity and status of immense import” upon a class of persons (same-sex couples) and that DOMA, rather than enhancing this status, was imposing “restrictions and disabilities” on such class and that the resulting “injury and indignity” of DOMA was a deprivation of rights protected by the aforementioned principles.
This holding by the Court effectively ensures that same-sex couples, who are legally married in a state which recognizes same-sex marriage (e.g. New York), will be recognized by the Federal Government as a legally married couple not only in such state, but in other states which do not perform or recognize same-sex marriage (e.g. Texas).
Please note that Section 2 of DOMA, while being negatively treated by the Supreme Court, has not specifically been held to be in violation of the Constitution. Section 2 amended 28 USCA § 1738C (West 2013) to be as follows:
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other state, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
While it could be held that such a statute is in violation of the “Full Faith and Credit” clause of U.S. Const. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof”), as well as under the same aforementioned principles, until an adjudication or change to this statute is made, each state is not required to recognize the marital status of same-sex couples who are married in another state.
Thus, there is a split between Federal and state laws on this matter. Recognition of the marital status of same-sex couples is granted by the Federal government, regardless of the state they reside in. Such recognition by state governments, however, is determined by each state.
We have been providing Cx13441 in states that recognize same-sex marriages, domestic partnerships, or civil unions, to inform borrowers that their spouse/partner may be required to sign certain legal documents, in order to ensure the enforceability of a security instrument (see article entitled “To Have and To Hold, In Title and in Compliance . . .” on our website at: http://www.docutechcorp.com/to-have-and-to-hold-in-title-and-in-compliance for details).
Due to the split between Federal law and state laws, as well as the ambiguity that stems from such splits, we will be providing Cx13441 in ALL states now (except for Vermont, in which Cx5107, a duplicate of a model form provided by the Vermont Department of Banking, Insurance, Securities, and Health Care Administration, is provided), to help lenders ensure that the borrower is aware that their spouse or partner will be required to sign certain legal documents.
We will also be eliminating the state-specific versions of this document, thus the document will provide borrowers in each state with a brief explanation that civil unions and domestic partnerships may enjoy the same rights as spouses in a marriage. It will also explain that partners in such relationships, as well as non-borrowing spouses (in traditional or same-sex marriages), may be required to sign the security instrument. The document will also contain no citations.
These changes will take effect immediately. If you have any questions or concerns about these changes, please contact Client Support at 1.800.497.3584.
July 15, 2013