PART OF DOMA DIED – WHAT NOW?
PART OF DOMA DIED:
WHAT NOW FOR LGBTQ COUPLES?
The Supreme Court of the United States (SCOTUS) ruled on June 26, 2013, that the Defense of Marriage Act, Section 3, was unconstitutional. Now, the federal government will treat “lawfully married” same gender couples as spouses for approximately 1100 different laws and regulations.
Federal agencies are moving quickly to implement this development. LGBTQ couples are riveted on this issue. If not yet married, they now must decide whether to marry, and if already married, they need to know how. Only thirteen states and the District of Columbia allow same sex marriage today, and nine states offer some other form of recognition. States are divided into three categories: marriage states, something states, and nothing states.
One major issue is whether a “marriage somewhere” will link a couple to federal recognition, no matter where they live. The nothing or something state’s same sex couples will travel to a marriage state to celebrate their union, and then return home. A married same sex couple may move to a nothing or something state. Section 2 of DOMA, which was NOT challenged, permits each state to determine whether to recognize same sex marriages. Some states may NEVER choose to recognize the validity of same sex marriage.
Will a lawfully married same sex couple be denied a federal benefit, or escape spousal responsibilities, if they live in a non-marriage state? Domicile concerns are a non-issue for many federal benefits (as shown by recent immigration, Department of Defense, and Office of Personnel Management developments). The US Department of Justice is consulting with each agency to develop some uniform policy. Practitioners are scouring statutes to see if federal recognition is linked by authorizing litigation to the state the applicant resides (or died, if survivor spouse benefits are sought).
Eventually, all validly married same sex couples will have their relationships respected by federal agencies – but achieving that goal will take more advocacy and litigation. A federal constitutional right to same sex marriage is unlikely given the composition of this US Supreme Court. What now for LGBTQ couples, as part of DOMA has died but Section 2 remains?
What should Oregon registered domestic partners do?
August 6, 2013 – 5:30-7:30 p.m.
Hollywood Branch Library, 4040 NE Tillamook
Cynthia L. Barrett
Attorney at Law
2722 NE 33rd Avenue
Portland, Oregon 97212
© 2013 Cynthia L. Barrett