Contrary to popular belief, DOMA is not dead

Today was a great day in the fight for marriage equality for same-sex couples, to be sure. A key provision of the Defense of Marriage Act (DOMA) was found to be unconstitutional, and the challenge against Proposition 8 was dismissed.

But despite what people are posting all over Facebook, the Defense of Marriage Act was not declared unconstitutional. Only a specific portion of DOMA was invalidated, not the entire law. It’s a great start, certainly, and I’m delighted — but let’s remember that there still is plenty of work ahead of us in the fight for national marriage equality.

Here’s a great passage from the ruling itself:

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages.  It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.  It also forces same-sex couples to live as married for the purposes of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

Emphasis added by me, to demonstrate my point. I’m not try to downplay the significance of these rulings, but I cringe every time I see “DOMA unconstitutional!” on Facebook. That’s not the full story.

What the Supreme Court of the United States (SCOTUS) decided was this: same-sex couples who are legally married in their state will be recognized as married by the federal government. This is fantastic, but let’s remember what the author of the SCOTUS decision wrote:

This opinion and its holding are confined to those lawful marriages.

In other words, if you are a same-sex couple in one of the thirty-seven states that currently do not allow same-sex marriage, your situation has not markedly improved just yet. Yes, you can go to one of the states that allow same-sex marriage and get yourself hitched, but as far as your state is concerned, you’re still not married.

What’s more, other portions of the Defense of Marriage Act are still in place.  For example, there is a provision that declares that states which do not allow same-sex marriage are not obligated to recognize a same-sex marriage from another state. So for example, friends of mine in Atlanta who were married recently in New York are still not married as far as the state of Georgia is concerned.

The Supreme Court only ruled on the legal challenge that was before it: the case was about a surviving spouse whose legal marriage was not recognized by the federal government for estate tax purposes. That’s been decided: the federal government has to recognize these legal marriages, period.  But that’s all that was decided in this case.

Similarly, the SCOTUS decision against the Proposition 8 appeal did lead to the confirmed legality of same-sex marriage in California. But all it really decided in this case was that the people who were defending CA Prop 8 didn’t have the legal standing to represent the law in court. So the appeal was dismissed, and the lower decision overturning Proposition 8 will be enforced. Great for California same-sex couples, but the court again dodged the question about whether or not same-sex marriage should be a universal right under the constitution’s “equal protection” clause, and failed to legalize same-sex marriage throughout the country.

Today’s win against DOMA and Proposition 8 were phenomenal. We rightfully should be celebrating. But we also need to wake up tomorrow morning with renewed vigor in our fight for same-sex marriage equality.

Next up:

  • Several additional lawsuits related to same-sex marriage are working their way through the court system, and some of those could reach the Supreme Court for further clarification
  • At a state level, the fight continues to get same-sex marriage legally recognized in states that don’t permit it today
  • Finally, the Respect for Marriage Act seeks to overturn the Defense of Marriage Act entirely, which would solve for the lingering problems above.

Go team, go!

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