YES!! SCOTUS OVERTURNS DOMA! … but the Fight’s Not Over

Posted on June 27, 2013


The federal statute is struck down as unconstitutional on the basis of states’ rights.  But the states still have the right to discriminate.

In a victory for the rights of same-sex married couples, the Supreme Court on Wednesday overturned the federal Defense of Marriage Act (DOMA).  As Justice Anthony Kennedy wrote for the majority:

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

While this paves the way for married same-sex couples to receive all the same Social Security, military and other federal benefits that their heterosexual counterparts do, it is worth noting that the Supreme Court ruling hinged on states’ rights, and that means that gay couples will still face a patchwork quilt landscape of freedoms and prohibitions depending on where they live.   Even without DOMA’s express provision that states are not required to recognize the validity of other states’ same-sex marriages, there is no federal law directing otherwise; states are still free to make their own discriminatory laws.  And unfortunately, they do just that.

Check out Daniel Pinello’s 2009 article in Law Trends and News, “Location, Location, Location: Same-Sex Relationship Rights by State.”  It is actually a frightening eye-opener, especially considering the way that many of these laws have sprung up in recent years support of DOMA, as the federal statute came under fire.  My own home state of Virginia, I am sad to say, is one of the most explicitly restrictive, with its own DOMA-like law now written into the state constitution.

The numbers are not trivial, as this interactive timeline from The Pew Forum demonstrates.  As Mr. Pinello pointed out in 2009, a whopping 39 states at that time had either added DOMA-like amendments to their state constitutions, passed DOMA-like laws, or both (as of 2013, that number is down to 36 – still not a small number!).  Constitutions are much more difficult to change than statutory laws, yet constitutions are where the preponderance of the changes have been made.  This tells me that these states’ legislators have some pretty strong feelings on the matter!

Fully 30 states have amended their constitutions in recent years with DOMA-like laws:  Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.

Six others have statutory DOMA-like prohibitions:  Hawaii, Illinois, Indiana, Pennsylvania, West Virginia, and Wyoming.

So long as this trend at the state level continues, the death of DOMA will have limited benefit for same-sex couples… even for such mundane federal considerations as, say, tax filing.  For instance, in Virginia, one’s state filing status must be the same as one’s federal filing status.  So Virginia same-sex couples will likely be forced to always file separately… which can add up to some real financial disadvantages, depending on the couple’s earnings.

Or consider hospital visitation rights. Despite President Obama’s 2010 order that all hospitals receiving Medicare or Medicaid allow patients to determine their own preferences on visitors, advance directives and powers of attorney, gay partners still are shut out by other family members, as happened recently to Roger Gorley in Minnesota.

The list goes on, from state inheritance laws, to adoption rights, to who gets child custody in cases of separation, to funeral arrangements.   These state laws mean that gay people still, in many places in this country, find their choice of partner dishonored in some of the most pivotal aspects of their lives.  Until that changes, the elimination of DOMA is only a start.