ECLECTIC RANT: A Brief Comment on the Supreme Court's DOMA Decision

By Ralph E. Stone
Friday June 28, 2013 - 10:34:00 AM

The Supreme Court in United States v. Windsor ruled that Section 3 of the federal Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriages legalized by the states, is unconstitutional. 

Adding California after the Hollingsworth v. Perry decision, twelve states now allow same-sex marriages and these couples are now eligible for federal benefits. This impacts about 1,100 federal laws, including veterans' benefits, social security, family medical leave, and tax laws.  

Six states permit same-sex unions granting rights similar to marriage under state law only. The DOMA decision does not impact these unions. Interestingly enough, this decision put New Jersey Governor Chris Christie in a difficult position. Christie had vetoed a bill that would have legalized same-sex marriage using the rationale that New Jersey already had a civil union law that was substantively equivalent to marriage, and so extending the word "marriage" to gays and lesbians was not necessary to achieve equality. Obviously he was wrong. The New Jersey legislative session runs for two years meaning that the legislature has until January 2014 to override Christie's veto. Stay tuned. 

At least 37 states prohibit same-sex marriage by statute or by their constitutions. The DOMA decision does not create a Constitutional right to same-sex marriage and thus, states are still free to prohibit same-sex marriages.  

And states prohibiting same-sex marriage are not required to recognize same-sex marriages. Query, what if a same-sex couple who was legally married in one state moves to another state where such marriages are not recognized. Can this couple still receive federal benefits? Or. for example, a same-sex couple travels to a state that prohibits same-sex marriages and one spouse becomes hospitalized and his/her spouse is not allowed visitation or powers to make a medical decision that are assumed for opposite-sex couples.  

The DOMA decision is a step in the right direction, but leaves same-sex couples in 43 states without a right to marry and thus, ineligible for federal benefits.