What Does a Repeal of the Gay Marriage Ban Means (DOMA)
As gay couples know all too well, there’s a long list of federal benefits, both financial and legal, that are available only to straight couples. Social Security spousal survivor benefits. Less expensive health care options. The ability to file one set of tax returns. And the list goes on.
So let’s imagine for a moment that the federal law that defines marriage as between a man and a woman was struck down tomorrow. Would same-sex couples then be able to get married at their local court house and gain all the same rights as their opposite-sex counterparts, at least for financial and legal purposes?
Not entirely. The law in question — the Defense of Marriage Act, enacted in 1996 — has two main parts: Section 3 defines marriage as a legal union between a man and a woman, while Section 2 allows states to refuse to recognize same-sex marriages performed elsewhere.
Still, even if the entire law disappeared, gay couples would still need to get married in one of the five states, or the District of Columbia, that perform same-sex marriages. But if they went back home to a state that did not recognize their union, they would still be strangers in the eyes of that state’s government. The couple would need to continue to file their state income tax returns separately, for instance.
But this is where it gets tricky. There could also be some confusion about what sort of federal benefits the couple is entitled to receive if they live in a state that does not recognize their union. Why? The federal government typically looks to the states to define marriage. And though states generally honor opposite-sex marriages performed elsewhere, many states specifically ban same-sex marriage.
“There is the possibility that, even without DOMA on the books at all, that a married same-sex couple might not be treated as married by the federal government as to some particular program, benefit or obligation because of simply how the particular federal program determines eligibility in looking to state law to see if a person is married or not,” said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders.
Consider a fictitious couple, Will and Henry. The couple was married and lived in Massachusetts but decided to retire to Florida, where they’ll apply for Social Security. The agency will look to determine the status of their marriage under the law of the state where they live on the date of application for the benefit, Mr. Buseck said. And Florida won’t deem them married.
But legislators have come up with a fix. The Respect for Marriage Act, which was introduced in both the House and Senate in March, repeals the Defense of Marriage Act and also includes a provision — known as “certainty” — that says marriages that are valid in the state where the couple got married will be recognized in other states for the “purposes of any federal law in which marital status is a factor.”
“You don’t want to end up with this perverse result where a couple leaves a marriage recognition state to retire or take another job and those federal benefits suddenly stop flowing,” said Brian Moulton, chief legislative counsel for the Human Rights Campaign.
Technically speaking, he said, the repeal of the Defense of Marriage Act on its own should be enough for couples to receive federal recognition. But the certainty provision would also protect couples if a less gay-friendly administration interpreted the repeal more narrowly, and only recognized same-sex marriage for couples who lived in states that recognized their marriage. Mr. Moulton said that his organization was still working with members of Congress to build support for the bill, and educating them about “the concrete harms that DOMA has done to same-sex couples.”
Even if the efforts for repeal were successful, only couples living in states that recognized gay unions would achieve most of the benefits afforded to straight married couples. Indeed, there are 29 states with constitutional amendments that define marriage as between a man and a woman, while another 12 states have similar statutory provisions, he added.
The legislation, for instance, doesn’t require states to grant state-level rights. Nor does it require states that haven’t recognized same-sex marriages to do so.
The courts may ultimately address the issue before Congress does, since there are several federal court cases where the constitutionality of the Defense of Marriage Act is being challenged. The Justice Department has said it would no longer defend the law in court, but House Republicans have said that they would work to do so.
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