DOMA…and what Changed

I’ve seen some bad reporting on the US Supreme Court DOMA and Prop 8 decisions. Here’s what I know.

First, nothing changes for 30 days (there’s a 30 day “waiting period” after Supreme Court decisions). In 30 days, the decisions go into effect.

The Prop 8 decision doesn’t affect anyone who is already married (sort of…as a person pointed out to me, it affects married gays or gays not wanting to get married in the same ways Brown v. Board of Education affected blacks who weren’t in school – so there certainly is a huge impact here, even if no new rights are granted to already-married and don’t-want-to-get-married people).

It does affect people in California. After the inevitable requests for stays and procedural arguments, gay people will most likely be able to get married in California. But it’s not quite done yet. Close, but not quite. The ruling that matters right now is Judge Walker’s ruling which has a stay right now that has to be lifted (it should be soon, but not until all the courts do whatever they need to do, which takes time).

The Prop 8 decision has no effect on someone who gets married or wants to get married outside of California. However, if you want to get married in California to a same-sex spouse, you’ll be able to do that soon.

The DOMA decision is more interesting. The Federal government has to now (after the 30 day wait, anyhow) treat married couples the same, gay or straight. This means things like married soldier housing, immigration decisions, federal conflict of interest laws, federal taxes, federal employee benefits, etc, all apply to same-sex married couples.

What doesn’t change is the other ugly part of DOMA. Today, the only marriage a state can decide not to recognize is a gay marriage. So if you were married in say Toronto or Iowa, both of which will marry a non-resident, and go back to your home state of Georgia, that state will treat you as unmarried. Thus, you have to file state tax returns as single people, your spouse might not be your next-of-kin if you die, your spouse won’t automatically inherit the house he shared with you (but you owned), etc. You’re still unrelated in Georgia, from the State’s eyes. Now it gets interesting because the Feds however will recognize your marriage, so you file joint Federal (but single person State) tax returns, can get Federal married employee benefits (if your spouse works for the Fed’s of course), etc. So it’s really a huge mess.

You wouldn’t have this problem if you got married to your first cousin in Georgia (legal there), but actually lived in West Virginia (where first cousin marriage is illegal). West Virginia is required by the constitution (full faith clause of the Constitution) to recognize that marriage. The only marriages they can choose to ignore are marriages that involve people other than “one man and one woman.” Clearly this is not right, and the part of DOMA that allows states to ignore gay marriages is not constitutional, but that hasn’t yet been decided by the courts. So in the meantime, Georgia will ignore gay marriages while West Virginia recognizes cousin marriages (that are performed out of state).

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One Response to DOMA…and what Changed

  1. Stan Provençal says:

    The reason for the difference is that same sex marriage is different from the cousin consanguinity was that same sex marriage considered a fundamental difference. Similarly, different states have different age limits and different legalizations. DOMA’s purpose was to codify this. At least that’s the logic. As the Supreme Court stated, the real purpose was discrimination, but the discrimination was based on that logic.

    There are other “fundamental” distinctions that are recognized in most states. Polygamous marriages performed overseas by non-citizens are generally recognized.

    Now for, as Antonin Scalia said, we’re waiting for the other shoe to drop. If shoe #1 is called “Section 3 of DOMA” then shoe #2 will probably be called “Section 2 of DOMA”. But it could just be the socks (more states recognizing marriage equality).

    Senator Vince Illuzzi (friend and classmate at VLS), would you believe that would be the ultimate result of your Domestic Partnership law?