By now, pretty much everyone has heard about the Supreme Court’s ruling on the Defense of Marriage Act (DOMA), in United States v. Windsor. However, from what I have seen, heard, and read from friends and commentators, there seems to be a lot of confusion about what the implications of the decision are and are not. So this blog post is intended to provide some insight into the changes the decision causes, the changes that it does not, and some of the complications that arise therefrom.
WHAT DOMA SAID
DOMA has three major provisions, only two of which are really relevant: Sections 2 and 3. Section 2 says that no state has to recognize a same-sex marriage entered into by another state. Section 3 basically says that same-sex couples are not recognized for anything that federal law interprets as applying to anyone that is “married.”
This case dealt only with Section 3. No challenge was made to Section 2.
For those that want to read the actual text, the relevant parts of DOMA are listed below:
Section 2. Powers reserved to the states.
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.
Section 3. Definition of 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.
WHAT THE DECISION DOES
The opinion essentially ensures that federal law will not treat a same-sex couple differently for any kind of federal benefit that could arise because someone is married. However, the opinion indicates that the federal benefits only apply if the state they are in would otherwise recognize same-sex marriage.
Marriage and domestic relations are areas that have traditionally been governed by state law. The Court felt that when states otherwise chose to give a certain class of people (same-sex couples) equal rights, that the federal government’s choice to curtail those rights in an arena traditionally governed by the states, represented a violation of equal protection.
The Court said that there were thousands of federal laws that dealt with marriage in some fashion and it listed a number of benefits that same-sex couples were denied. Because of the ruling, each of these is now available to a couple that is otherwise lawfully married. Some expressly discussed by the Court include:
- Estate tax benefits
- Healthcare benefits
- Preventing the discharge of domestic support obligations (child support/alimony) in bankruptcy
- The ability to be buried with your spouse in a veterans’ cemetary
- Simplicity in filing state and federal taxes (before, if a state allowed same sex marriage, it created confusion in filing state and federal returns since the federal government wouldn’t recognize the marriage)
- Victim benefits under criminal law (for example, it’s a federal crime to “assaul[t], kidna[p], or murde[r] . . . a member of the immediate family” of “a United States official, a United States judge, [or] a Federal law enforcement officer,” 18 U. S. C. §115(a)(1)(A), with the intent to influence or retaliate against that official, §115(a)(1). This would not apply to the spouse of a same-sex partner.)
- Social Security benefits
The Court also pointed out that it’s not just benefits that are being denied, it’s obligations. Thus heterosexual couples are being unfairly obligated when same-sex partners are not. The Court’s opinion changed that. A few of the obligations mentioned included:
- Student loan eligibility (to qualify for financial aid, the federal government takes into account a student’s spouse’s income–same sex partners were being ignored in this analysis)
- Executive participation in matters to which a spouse has a substantial financial interest (there is a law prohibiting a spouse that is a federal executive or agency official from doing so)
- Senate employee acceptance of gifts to spouses (federal law prohibits giving high-value gifts to a Senate employee or their spouses)
- Certain disclosures regarding the finances of high-ranking officials and their spouses
Thus, reasoned the Court, it’s not fair that in a state that has already chosen to recognize a same-sex marriage, that the partners are denied the benefits of federal law and the obligations that come with it.
WHAT THE DECISION DOESN’T DO
It seems that much of the confusion comes from what the decision doesn’t do. Recall that Section 2 of DOMA (the part that says a state doesn’t have to recognize a same-sex marriage from another state) was not challenged at all. Thus this ruling says nothing about whether or not it is lawful for a state to completely abolish same-sex marriage. In fact it expressly excludes its application to such states.
So don’t expect that in states that prohibit homosexual relationships, such as Arizona, that you can run out and get married now. This also leaves the pending question of gay divorce that arises in such cases as that of Thomas Beatie.
COMPLICATIONS THAT ARISE FROM THIS DECISION
As everyone begins to sort out how to deal with this ruling, the difficulty comes from having to do things differently in different states. Because the Court has not banned prohibitions on same-sex marriage but requires that employers do certain things for purposes of family leave, pensions, and various other federal benefits, it leaves confusion about what to do for companies that have a multi-jurisdictional presence or for employees that may be working in a state that prohibits same-sex marriage but that got married in a state that does not. Obviously the legal system will have to sort these issues out.
CONCLUSION
Ultimately, this decision represents a major victory for proponents of same-sex marriage. It is not, however, an absolute victory. While same-sex couples now get federal benefits in states that recognize the validity of their marriage, the decision doesn’t create a flat right to get married. It does, however, pave the way to further legal battles over this issue.