Tuesday, July 23, 2013

An Amateurish Decoding of the SCOTUS's DOMA Ruling

On June 26, the Supreme Court of the United States (SCOTUS) voted down Section 3 of the Defense of Marriage Act (DOMA). If you’re unclear on just what the heck DOMA is, here’s a very short and incomplete summary of it: In 1996, the U.S. Congress passed the Defense of Marriage Act, which effectively defined marriage as something that can only occur when the spouses-to-be have one vagina and one penis apiece. Section 2 of DOMA allows states and other entities to ignore same-sex marriages performed in, and legally recognized by, other states. Section 3 effectively stated the federal government would not recognize or honor same-sex marriage, no matter which states legalized it.

Let’s put wheels on these dry explanations. Say Maria and Rose tied the knot in Massachusetts in 2005 and then moved, for some perverse reason, to my home state, Idaho. Under DOMA, Idaho is not required to regard them as married or to ensure they receive the same state benefits they enjoyed in Massachusetts (Section 2). And the 1100+ federal benefits married couples receive, ranging from social security to estate taxes to immigration? Maria and Rose never received any, whether they lived in Massachusetts or Idaho (Section 3).  

After the Supreme Court tossed out good ol’ Section 3 of DOMA, same-sex couples now receive federal recognition of their married status in states that recognize same-sex marriage. So what are the implications? I list a few below. Before I do, though, let’s be clear on something: I’m not a lawyer, and I can’t begin to untangle all the massive implications of the overturning of DOMA. In fact, my understanding of this issue is pedestrian at best. However, I did a couple hours of research, and I’m happy to share my findings. Please let me know if I’ve made any mistakes or overlooked something.

1. In theory, federal employees will now receive benefits for their same-sex partners.

2. Same-sex couples of mixed nationalities will now receive the same considerations as straight couples when it comes to issuing visas. Here’s a story about just such a couple; it just might make your heart dribble down your ribs.

No worries about Bert and Ernie. They live in NY, where
same-sex marriage has been legally recognized since 2011.
3. As far as I understand it, same-sex couples who marry in states where it’s recognized and then move or return to states where it isn’t will likely not receive many, if any, federal benefits. Or, to be more precise, it depends on which federal benefit and to which state they move. According to Lambda Legal, “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.

4. Striking down Section 3 of DOMA does not mean all of DOMA is dead. Section 2 of DOMA says it’s just fine for states to pass their own, state versions of DOMA. For example, South Dakota, the state in which I live, has a law on the books that actively illegalizes same-sex marriage. If you’re interested in where your state stands, this graphic is deliciously thorough. This is another good summary of state-to-state laws affecting LGBT folks in general. According to MSN, as of July 2013, “[Thirty-six American] states ban gay marriage outright, and of those, 31 have passed constitutional amendments that make such marriages illegal.

So, in short, the Supreme Court struck down Section 3 only. This allows for the distribution of federal benefits formerly denied legally-married same-sex couples. In so ruling, the Supreme Court did not in any way recognize the legitimacy of same-sex marriages, nor did it ban states from passing legislation forbidding it.

5. For those who, for whatever reason, think all same-sex couples can now get married, think again. This ruling doesn't actually affect opportunities for marriage; it allows for federal recognition of the ones acknowledged by the 13 states that have legalized same-sex marriage. When Section 3 of DOMA blew away on the winds of equality, it didn’t blast open the door for any same-sex couples previously denied the right to legally marry. Heck, for folks in the 37 states that haven’t yet legalized same-sex marriage, the end of DOMA’s Section 3 means very little to their everyday lives.

On a less Gloomy-Gus note, the overturning of Proposition 8 effectively made California the thirteenth state to allow same-sex marriage. That makes up for me tossing buckets of ice water on your Pride parade, right?

Striking down Section 3 of DOMA was a huge boon for the LGBT movements; however, it by no means represents the end of the fight for LGBT rights. In my state, for example, LGBT folks have zero legal rights. Even our single anti-bullying law is carefully phrased to exclude any mention of sexuality. We have a lot of work left to do.

If you’re interested in getting involved, below are a few organizations that need help. (Please feel free to read the comments section for more info on these orgs.) May the rainbow force be with you.

*  GLAAD

1 comment:

  1. A friend of mine wrote this in response to my Facebook post linking to this:

    "good article! BUT NO HRC - they are seriously racist and transphobic and really a laughing stock amongst political queers (versus the heteronormative wealthy "nice" gays and lesbians they take their money from). The NGLTF also has some problems to be on the lookout for (including, but not limited to, implicit fatphobia since SW was their sponsor airline before they changed their fat people policy.) and well glaad is fine, but seems more concerned with awarding hetero people awards for being nice to queers than in focusing on queers."

    ReplyDelete