State DOMAs: The next frontier of litigation after the Supreme Court’s DOMA ruling
By Adele Kimmel, Managing Attorney
The Supreme Court’s historic ruling striking down a portion of the Defense of Marriage Act (DOMA) as unconstitutional is being hailed by advocates and supporters of gay rights as a milestone in our country’s march toward equal treatment for all married couples and their families.
The fact that our nation’s government can no longer deny federal benefits to same-sex married couples is indeed cause for celebration.
But after every good celebration, there is a lot of cleaning up to do. And this victory party is no different.
It is certainly true that many of the estimated 114,000 legally married same-sex married couples are better off after the Court’s DOMA ruling in United States v. Windsor. For the couples who live in the states where they were married, it will be relatively easy for the federal government to extend more than 1,000 benefits involving matters like income taxes, immigration, Social Security and veterans’ benefits.
However, as a recent New York Times article reported, the path is murkier for the couples who live in any one of the 37 states where same-sex marriage is not legally recognized. And it’s even more complicated for the legally married couples who live in one of the 31 states that ban same-sex marriages in their own versions of DOMA.
Why is this so complicated? One reason is that there is no uniform rule to determine eligibility for federal benefits. Some federal agencies look to the law of the state where the couple got married (the “place of celebration”), some look to the law of the state where the couple resides (the “place of domicile”), others look to the state “with the most significant interest” in the marriage, and some have no explicit rule at all.
So, one area in need of cleaning up is the federal agencies’ regulations and practices. According to a post-DOMA ruling Fact Sheet, LGBT organizations are recommending that the Obama Administration take steps to adopt the “place of celebration” standard to solve this problem.
A second reason this is complicated and in need of cleaning up is that the Court did not strike down DOMA in its entirety. Windsor struck down Section 3 of DOMA, the part that excluded married same-sex couples from federal programs and benefits. It did not address Section 2, which allows states to refuse to recognize same-sex marriages performed in other states.
Getting rid of Section 2 will likely require legislative action. There is a bill pending in Congress — the Respect for Marriage Act — that would fully repeal all of DOMA if passed. But even if DOMA were completely repealed, that would not eliminate the 31 state DOMAs currently in place.
That brings us to the third area in need of cleaning up: the state DOMAs. Ensuring marriage equality for all is going to take a combination of political activism, legislative action and strategic litigation.
More and more states will repeal their versions of DOMA over the next several years and will pass legislation making same-sex marriages legal. But, as is often the case when the issue at stake involves protecting individual rights against discrimination by the majority — and as Windsor shows — litigation is needed to clear a path for change.
Windsor gives us much to celebrate. But now it’s time to clean up and prepare for the next frontier of litigation: overturning state DOMAs.