SCOTUS strikes down DOMA; Impact on Criminal Law

Issue August 2013 By Peter Elikann

On June 26, 2013, the United States Supreme Court invalidated the Defense of Marriage Act in United States v. Windsor. The decision struck down a key section of DOMA, which defined marriage as between a man and a woman for the purpose of federal law.
Practically speaking, the United States Supreme Court's ruling in United States v. Windsor that the federal Defense of Marriage Act is unconstitutional will have little discernible effect on the practice and enforcement of criminal law in Massachusetts.

This, despite the fact that Justice Anthony M. Kennedy, writing for the 5-4 majority, specifically included this field of law when he stated that DOMA controlled "laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright and veterans' benefits."

First, the decision upheld the history and tradition of marriage being within the authority of the states. It reasoned that to have the federal government view a couple as unmarried while, at the same time, a state may or may not recognize that same couple as married might create "contradictory marriage regimes in the same state" and violate basic due process and equal protection principles. Since Massachusetts does, in fact, already recognize same-sex marriages, Windsor has no impact here on victims or citizens accused of crimes within its borders.

Nor will it affect same-sex couples married in Massachusetts when they travel, move or return to other states. Since Windsor left in place the law that says no state is required to recognize same-sex marriages performed in another state, there will be no change there.

Most of the criminal laws pertaining to married couples concern rights relating to domestic assaults, abuse and restraining orders. This is why even if, hypothetically, Massachusetts did not recognize same-sex marriages, it would still have little effect here. That is because Massachusetts' domestic abuse law has already long been enlightened enough to broaden its jurisdiction outside a legal marriage.

For example, in a relatively wide net, the Massachusetts 209A restraining orders against those who attempt to cause physical harm or place another in fear of imminent serious physical harm encompass those who: (1) are currently, or even formerly, married; (2) are or were residing in the same household; (3) are or were related by blood or marriage; (4) have a child in common regardless of whether they were ever married or even living together; or (5) either are, or have been in the past, in a dating relationship. In other words, there has not been a requirement of legal marriage for an offender to be criminally charged with a 209A restraining order.

The exception where an actual legal marriage is a requirement in Massachusetts is the assertion of the marital privilege. The spousal privilege law in Massachusetts states that a spouse cannot be forced by the prosecution to give testimony in a trial or other criminal hearing brought against the other spouse with the exception of prosecution for non-payment of support, child incest, child abuse or neglect of parental responsibilities.

Although Windsor requires that, from now on, same-sex married couples be recognized as spouses for the purposes of all federal laws, there are very few federal criminal laws concerning married couples. For example, the federal penal code makes it a crime to assault, kidnap or murder a member of the immediate family of a United States official, judge or law enforcement officer with the intent to influence or retaliate against that official. The Windsor decision makes this federal offense applicable to same-sex spouses for the first time.

The bottom line is that the landmark Windsor decision will have almost no practical effect on criminal offenses in the commonwealth.