Thursday, June 10, 2010

VAWA Applies to Same-Sex Partners, OLC Opines

The Office of Legal Counsel yesterday released an opinion (dated April 27, 2010) concluding that the criminal provisions in the Violence Against Women Act (VAWA) apply when the victim and offender are the same sex.

The opinion evalutes VAWA's provisions on interstate domestic violence, interstate stalking, and interstate violation of a protection order.  Each provision applies to a "spouse, intimate partner or dating partner" (or some close variation to this phrase).  The OLC thus opined in a largely textual analysis that "intimate partner," "dating partner," and other such non-marital relations include same-sex partners every bit as much as opposite-sex partners.

But the OLC also opined that the term "spouse" cannot apply to a same-sex partner, even if the partners are married under state law, becuase the federal Defense of Marriage Act (DOMA) forbids such an interpretation.  The DOMA provides that for all federal purposes--including "determining the meaning of any Act of Congress"--"the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The conclusions are not surprising.  But the memo is noteworthy: This is only the third 2010 opinion that the OLC has released--certainly a busy year for the Office, in an administration with a stated commitment to transparency.


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