The End of DOMA? What It All Means.


DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple…. And it humiliates tens of thousands of children now being raised by same-sex couples.”

-Justice Kennedy, striking down Section 3 of the Defense of Marriage Act (DOMA)

Without question, last week’s Supreme Court decision in United States v. Windsor was among the most important civil rights decision in this country’s history. Yet, the ruling raises a number of questions. First, there is the practical impact of the Court decision. At the time of DOMA’s passage in 1996, not a single state authorized same-sex couples to marry. Now, there are thirteen jurisdictions in the United States, including the District of Columbia, with marriage equality. What are the immediate, practical implications of the court’s decision for married same-sex couples?

images[4]While the outcome of the case is important, so is the actual language of the decision itself. The language of the ruling provides guidance to lower courts who will inevitably continue to wrestle with this issue. The text of the ruling also provides insight into how the members of the Supreme Court will rule in future decisions involving same-sex marriage, and future decisions involving the larger question of equality for LGBT people. On the one hand, as more states adopt laws respecting same-sex relationships (and they will), and on the other, as states like Texas stubbornly refuse to acknowledge gay relationships in any manner, the issue will inevitably come before the high court again — and very soon — both to resolve conflict of law issues and to address the larger question of marriage equality.

As a preliminary note, here, I will solely address the Supreme Court’s decision in the DOMA case. While there is much we could discuss about the other marriage decision, Hollingsworth v. Perry, because the ruling did not reach the marriage question, I will not address it.

So, let’s break it down, shall we? Here, in Part I, I discuss the practical impact of the DOMA decision on married same-sex couples. Part II will address the broader constitutional question, which is closely tied to what the future may hold on this issue.

First, a Little About DOMA and the Supreme Court’s Decision

At the risk of stating the obvious, let’s get something out of the way: the Supreme Court did not recognize the right to same-sex marriage. While this question could have been decided by the Court in Hollingsworth, the case was dismissed on the issue of standing and, thus, the Court did not address this or any other substantive issue related to same-sex marriage in the Hollingsworth decision.

In the other marriage case, United States v. Windsor, the Supreme Court solely addressed Section 3 of the Defense of Marriage Act (DOMA). There are two main parts of DOMA. The first part, Section 2, allows states to refuse to recognize same-sex marriages legally performed in other states. This section was not at issue before the Court in Windsor and therefore remains the law.  It has been and continues to be up to states to decide whether they wish to recognize a same-sex marriage performed in another state.

The section addressed by the Supreme Court, Section 3 of DOMA, provided that (1) the federal government would not recognize same-sex marriages; thus, (2) legally married same-sex couples could not access the over 1,100 federal rights and benefits offered to married heterosexual couples. This, the Windsor Court ruled was unconstitutional. (See Part II for a greater discussion of the decision.)

Practical Impact: Rights and Benefits of Married Same-Sex Couples

imagesCA11NHVBNow that Section 3 of DOMA is gone, probably the most pressing and immediate question on people’s minds is the impact of the Supreme Court’s decision on couples who are legally married. Does the decision mean that all legally married same-sex couples have access to the same federal benefits as married heterosexual couples? Well, not really… at least not yet.

This question is more complicated than it looks at first glance. There are at least two (probably three) distinct parts of this question: first, there is the question of applicability to individuals who are married and reside in states with marriage equality; the second question is in regard to the impact of the decision on same-sex couples married in a state with marriage equality but living in a state, like Texas, that doesn’t recognize their marriage. Unfortunately, when the decision takes effect (25 days from the date of the decision), a lot will depend on whether you are in the former or the latter category. Because we live in Texas, I will only address the latter category.

Place of Domicile v. Place of Celebration

In determining who is married for the purpose of many federal benefits, federal law defers to states’ definition of “spouse” or “marriage.” For some benefits, the federal government looks to the definition in the state that is the “place of celebration” —  or the place of marriage–and for other benefits the federal government relies on the definition in the “place of domicile” — basically, the place you call home.  Thus, for those of us who live in Texas, which does not recognize same-sex marriage, we are out of luck when it comes to federal benefits that rely on the place of domicile — at least for now.

Federal Rights and Benefits

That said, there are now a few very significant federal benefits available to legally married same-sex couples who live in Texas, including immigration benefits. Here’s a quick overview of what I’ve gathered about a few of the federal rights and benefits.

Place of Celebration (legally married same-sex couples who reside in Texas can now access these federal benefits): immigration; military spousal benefits; bankruptcy; if you are a federal employee, spousal benefits such as health insurance and FMLA; some Medicare benefits; and federal taxes.

Place of Domicile: FMLA leave (non-federal employees), Medicaid, some Medicare benefits, and Social Security benefits.

In many cases, whether place of marriage or place of domicile applies remains to be determined. Thus, much of the impact of the decision on those of us who reside in states like Texas must still be sorted out. These decisions reside largely with the Obama administration and with Congress. Following the Court’s ruling, President Obama promptly promised to implement the decision “swiftly and smoothly.” The federal government has already announced it will extend certain benefits to same-sex spouses of federal employees. For now, we will have to stay tuned to find out how the administration will continue carry out the ruling and, specifically, whether it will take steps to ensure that those of us who reside in states that do not respect our relationships will receive the broadest benefit possible from the decision.

But, remember…

On a final note, remember that regardless of whether you are married or where you live, there are practical measures you can take to access some of the legal protections automatically provided to married couples. By creating a comprehensive estate plan – will, powers of attorney, etc. – you can protect your personal choices and your relationship. Remember, if you don’t decide, Texas will decide for you.

Questions about estate planning, DOMA, or anything related? Don’t hesitate to contact me.



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