The Supreme Court’s recent decision to repeal part of DOMA has brought about a great relief to LGBTs. It is important to understand more about the different parts of DOMA and how each affects us.
In
1996, to help defend one-man, one-woman marriage from efforts to redefine it,
the United States Congress overwhelmingly passed- and President Bill Clinton
signed – the “Defense of Marriage Act.” It defined marriage in federal law and enabled states to decline
to recognize same-sex marriages from other states.
DOMA
defined marriage in federal law as follows:
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.
The
Defense of Marriage also affirms the power of each state to make its own
decision as to whether it will accept or reject same-sex marriages created in
other jurisdictions.
Any
attempt to repeal either of the two DOMA sections will have significant
implications. Repeal of the first section would eliminate the uniform
definition of marriage across federal statutes and programs. Repeal of the
second component would make it much more difficult for a State to refuse to
recognize same-sex marriages from other States.
The
Supreme Court’s resent historic ruling striking down Section 3 of the
discriminatory Defense of Marriage Act (DOMA) is an enormous victory for
loving, married couples and their families, and affirms that they deserve equal
treatment under the law. This victory demonstrates the importance of access to
marriage, and gives married same-sex couples access to the tangible benefits of
the federal safety net, allowing them to better protect one another and their
children.
Ending
DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an
official federal policy disapproving of gay people and same-sex relationships,
often imitated by states and imposed a second-class status on our lawful
marriages by negating them for all federal purposes. The Court has now affirmed
that equal protection guarantees apply to the relationships of LGBY people and
has replaced federal disrespect with federal respect for our lawful marriages.
This victory will energize our work moving forward so that we can achieve a
reality in which every single same-sex couple enjoys full and equal protections
under the law, regardless of where they live.
For
legally married couples living outside of a marriage state of the District of
Columbia, there are still many questions about when they will be equally able
to share in federal protections, responsibilities, and programs. This is
because the federal government typically defers to the states in determining
whether a couple’s marriage is valid. There is no one rule across all federal
agencies. Some agencies look to the law of the state where a couple married
regardless of the law of the state where the couple now lives, while others
look to the law of the state where the couple is living now.
I
think the federal government can and should take action, where necessary, to
ensure that married couples in all states have access to the largest number of
federal programs. The federal government is already looking at how federal
agencies can ensure fair and equal treatment of all married couples where
possible. However, at this time, there are a number of important federal
benefits that depend on whether your marriage is recognized where you live, so
couples who live in states with bans on marriage by same-sex couples should
proceed with caution before making the decision to marry.
One
question that comes up frequently now has to do with wondering if all of DOMA
is now completely repealed? The answer is no.
The
Windsor case challenged the
constitutionality of Section 3 of DOMA, the part that discriminatorily excluded
married same-sex couples from federal protections, responsibilities, and
programs. Section 2 of DOMA, which says that states may discriminate against
gay couples legally married in other states, still stands. Legislative action
will be needed to remove it, although getting rid of Section 2 will not
eliminate discriminatory state marriage laws.
The
Respect for Marriage Act, a bill pending in Congress that enjoys bipartisan
support and the backing of President Obama, would fully repeal all of DOMA. It
would also ensure that all married couples – including same-sex couples – enjoy
equal rights under federal law. It would not tell states what to do, but would
ensure that the federal government treats all marriages with respect.
