After the Supreme Court DOMA Decision, Is Striking Down State Laws Next?
What the DOMA decision does not immediately improve is the lot of same-sex couples who live in the thirty-seven states without marriage equality. Thirty-one of those states go further, with bans on same-sex marriage—their own versions of DOMA. Nor does it simplify the situations of couples who are legally married in one state but move to another where same-sex marriage is not legal. Windsor struck down Section 3 of DOMA, which dealt with the federal government, but it left untouched Section 2, which allows states to deny recognition to other states’ marriages. Indeed, the victory in Windsor was grounded in the notion that marriage law has traditionally been left up to the states. So while Justice Anthony Kennedy’s language in the opinion—his powerful invocations of dignity and respect and equal protection—will certainly give aid and comfort to anyone trying to overturn the state-level DOMAs, it doesn’t help much in the practical short term.
These “mini-DOMAs,” as the legal scholar Steve Sanders calls them this week on the SCOTUS blog, “deny legal recognition to the marriages of same-sex couples who migrate from states where such marriages are perfectly legal; some expressly purport to ‘void’ such marriages.” For same-sex couples living in “mini-DOMA states,” the uneven landscape of marriage equality means that “Windsor simply creates new legal dilemmas.”
The Obama Administration could help insure that the Windsor decision, which it applauded, helps as many couples as possible by encouraging all of its agencies to adopt a “place of celebration standard”—that is, to recognize marriages based on where they were performed rather than on where the couple resides. On immigration matters, this is the rule already; that’s why Marsh and Popov prevailed. Though they live in Florida, which does not recognize same-sex marriage, they were wed in New York, which does. Or, as Julian Marsh put it, “We are first-class citizens in New York and in the eyes of the federal government, but second-class citizens in Florida.”
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