Gay Marriage Rights Destined to Be Really Complicated Regardless of What Happens With DOMA

As the 2012 election approaches, the dial is slowly being ratcheted up on the conversation around Obama’s contributions to the gay community – has he done enough? Is he doing enough now? What will he be able to accomplish by 2012? If a Republican president is elected, what will they be able to instantly overturn?

High on the list is whether or not real progress will be made on repealing the Defense of Marriage Amendment. Could Obama’s legacy be forcing the federal government to recognize same-sex marriages? If you’re optimistic, it seems possible. According to the New York Times, however, things are a little more complicated than that.

Right now, the (very general) situation is that gay marriage is recognized by a few states, but not at all by the federal government. A repeal of DOMA would be a big deal for this reason; it would mean that people who were legally married could, say, file joint federal tax returns, and list each other on their employer’s health insurance. Unfortunately, if DOMA were repealed tomorrow, it would not have a sort of Gay Family Emancipation Proclamation effect where all legal headaches for gay married couples suddenly vanish. Instead, kind of paradoxically, suddenly the opposite problem would exist: couples would have their marriages recognized by the federal government, but only in states that agreed to also recognize their marriage. Confused yet?

“There is the possibility that, even without DOMA on the books at all, that a married same-sex couple might not be treated as married by the federal government as to some particular program, benefit or obligation because of simply how the particular federal program determines eligibility in looking to state law to see if a person is married or not,” said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders.

Consider a fictitious couple, Will and Henry. The couple was married and lived in Massachusetts but decided to retire to Florida, where they’ll apply for Social Security. The agency will look to determine the status of their marriage under the law of the state where they live on the date of application for the benefit, Mr. Buseck said. And Florida won’t deem them married.

we're way too hot and in love to not get a break on our federal taxes

What’s a gay family to do? And what’s the real point of working to repeal DOMA if it won’t help families avoid the hopscotch across the nation of sympathetic states? “Even if the efforts for repeal were successful, only couples living in states that recognized gay unions would achieve most of the benefits afforded to straight married couples. Indeed, there are 29 states with constitutional amendments that define marriage as between a man and a woman, while another 12 states have similar statutory provisions, [Brian Moulton, chief legislative counsel for the Human Rights Campaign] added.”

two calendar girls pretend to be married

 

Well, fortunately there are people working to fix this. It turns out that way back in March the Respect for Marriage Act was introduced in both the House and the Senate. Aside from being one of the most accurately named pieces of legislation in memory, it would include a provision known as “certainty” – a very reassuring word, no? – which means that “marriages that are valid in the state where the couple got married will be recognized in other states for the “purposes of any federal law in which marital status is a factor.”

 

It isn’t certain that the repeal of DOMA would leave this loophole, but it is fairly certain that if passed, the Respect for Marriage Act would close it. And it’s an indication also that the administration isn’t just going through the motions as far as this issue is concerned; there seems to be a real sense of momentum for resolving this issue in the long term. It speaks to the legislature’s ability to understand the realities at stake for the families this affects, rather than relying on symbolic gestures to win the support of a community. As complex as the future of gay marriage might be, hopefully we’ll see it advance to whatever the next stage is sooner rather than later, and that this support doesn’t waver.

Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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15 Comments

  1. DOMA is a shit-show. Everyone also forget that DOMA makes it extremely difficult, if not impossible, for a gay American citizen to marry a person from another country. For example, if you are an American citizen and marry someone from Canada, DOMA effectively blocks your partner from being able to immigrate to the country. EVEN WITH STATE LEGISLATION LIKE: the Marriage Recognition and Family Protection Act passed in California, which was passed (*hush hush mind you), to protect the rights of American citizens who marry outside of California (but not if your partner is foreign).

    What option are you and your partner left with? A working visa, if you want to live in the U.S. or MOVE to a country that recognizes gay marriage…

    I repeat, shit-show. DOMA needs to be repealed.

  2. DOMA is a shit-show. Everyone also forgets that DOMA makes it extremely difficult, if not impossible, for a gay American citizen to marry a person from another country.

    For example, if you are an American citizen and marry someone from Canada, DOMA effectively blocks your partner from being able to immigrate to the country – EVEN WITH STATE LEGISLATION LIKE: the Marriage Recognition and Family Protection Act passed in California, which was passed (*hush hush mind you) to protect the rights of American citizens who marry outside of California (but the Act does not apply if your partner is foreign because of DOMA).

    What option are you and your partner left with? If you want to live in the U.S., you’re stuck with a working visa or you pretty much have to MOVE to a country that recognizes gay marriage…

    I repeat, shit-show. DOMA needs to be repealed.

  3. The ding bat does not know what she writes about!!! Doma has every thing to do with Imaigration!! Lord Help her and other dim wits that are trying to put a wet blanket on the stiuation!!! HELP!!!!

  4. Pingback: Autostraddle — Gay Marriage Rights Destined to Be Really … | MyGaySpot

  5. Aye, with civil rights it always gets more complicated at the turning point.

    Remember Loving V. Virginia. They got married in Maryland (or was it DC?) and got arrested in Virginia for it.

    This complication was expected. With DOMA repealed, it won’t make sense to allow any state to bar same-sex marriage. Letting individual states discriminate will become legally cumbersome. The legal justifications for state bans will start to fall apart. Enter the Prop 8 case in the Supreme Court. It’s all part of the plan.

  6. ugh, i’m so frustrated. snags after snags after FUCKING SNAGS. i wish these people actually had like a moon jump in their offices and that would be a more legitimate excuse for not getting shit done.

  7. This is all kinds of ridiculous. Also, I was highly amused at the fact that while I was reading this there was an ad on the side of the page for “ChristianMingle.com.”

  8. shouldn’t federal law overrule state law? wouldn’t that make some sort of sense? or is this not about making sense? because i really like it when i can understand things, like why gay marriage is illegal or why people don’t ask me if i want ice cream when the truck rolls by and i don’t see it. neither of those make sense. common sense and being nice. gay marriage. ice cream.

    • States are in charge of marriage…well except where DOMA is concerned. Same sex couples married in states which allow it aren’t considered married by the federal government. Plus DOMA says it’s ok for states that don’t want to (I count nearly 40 and more) recognize as legally married couple of the same gender don’t have to…and basically don’t.
      Repealing DOMA with let my spouse benefit from my federally regulated pension and from my Social Security should I pass before her….otherwise the reality is the household income is cut in half… a surviving spouse from a heterosexual married couple do not have that penalty.

    • What some/many/most people don’t realize is that the DOMA EXEMPTS ITSELF from part of the Constitution (specifically, the Full Faith & Credit Clause – which is what would normally REQUIRE other States to recognize perfectly legal contracts from other States – as well as the Equal Protections Clause – the part the Obama administration is refusing to defend in courts).

      How can ANY law that EXEMPTS ITSELF from the Constitution be considered “Constitutinoal” in the first place?

  9. i had this weird conversation with a co-worker the other day who was talking about how she’s “too old” to get married now (she’s 27) and if she ever does get married she won’t do it publicly and will just go to a courthouse because she’s “embarrassed” about being “old” even though her parents have offered to pay for a big wedding, and i don’t know. i don’t even really LIKE weddings and i was all like, honey, please, i’m going to be fucking ANCIENT by the time i can get married and every state will recognize it, don’t tell me you’re too old. and my parents would never pay for it and half my relatives wouldn’t show up and i’m SURE some people would have a bunch of Weird Offensive Questions about it and even if it’s legalized it’s going to be Complicated for a while and who knows if laws legalizing it even stick or whatever and basically it sucks, so if you can do it and you want to, just fucking do it and don’t be all weird about being 30 or whatever because I’m gonna be like 40 if ever, and everyone just kind of stared and then I felt like the crazy gay girl that went on some weird gay rant at work? I don’t know.

    This wasn’t totally relevant, that’s okay, i was just Having Some Feelings

  10. “if DOMA were repealed tomorrow, …. couples would have their marriages recognized by the federal government, but only in states that agreed to also recognize their marriage.”

    This is one of the reasons DOMA is considered unconstitutional, the Full Faith and Credit Clause of the US Constitution requires would require states to recognise marriages preformed in other states, regardless of that individual state’s laws. Section 2 of DOMA however gives states the ability to ignore this, so if DOMA was suddenly repealed other states would be required to recognise same-sex marriages preformed in other states. Really all the Respect for Marriage Act does is make it so that the Federal Government, not State Governments, has to recognise same-sex marriages.

  11. The article is utter nonsense. The Federal government, before DOMA, had a very simple criteria for deciding whether a couple is married, That criteria was: If they have a marriage license or certificate, issued by any state or nation, then they are married.

    DOMA made it complicated. Now, every couple is also required to present birth certificates or medical evidence showing that they are of opposite sexes.

    Repealing DOMA will make it simple again.

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