Sorry to Be a Killjoy, But DOMA Isn't Actually Dead Yet

In a landmark 5-4 decision today, the Supreme Court struck down a key provision of the Defense of Marriage Act, ruling that same-sex spouses legally married in a state may receive federal benefits. But don't get too excited. Although this reflects a clear victory for gay marriage proponents, there is still a lot of work to be done. 

That's because the Court did not reject DOMA as a whole; it struck down Section 3, but left intact Section 2, which allows states to refuse to recognize same-sex marriage licenses issued in other states. 

Regarding Section 3, the Court argued that "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."

In addition, the Court argued that DOMA creates an unjust and impractical disjunction between federal and state law because it "forces same-sex couples to live as married for the purpose 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." 

No doubt, this is a huge victory for equality. Gay couples will now have the same rights and responsibilities as straight couples as far as federal benefits are concerned. 

But in my opinion, a negation of Section 2 would have been at least as big of a victory as the elimination of Section 3. This is because Section 2 concerns "powers reserved to the states," which means that as long as Section 2 is upheld, gay Americans will not be able to live freely in any state they wish without losing some freedoms.

Under Section 2, if a couple gets married in New York then moves to another state where gay marriage is illegal, their marriage — though legally carried out in one part of the country — will still not be recognized. As Section 2 reads, "No state, territory, or possession of the United States...shall be required to give effect to any public act ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of" other states.

This raises two questions. First, could DOMA be challenged again at some future point by a same sex couple married in one state who's denied recognition in another that doesn't have gay marriage? Second, is it possible the court will have to revisit this again? 

The answer to both questions is almost certainly "yes." 

Sooner or later, the Court will be revisiting DOMA, and there is a high chance that the case filed will concern problems arising out of Section 2. Let's hope that next time the Court reviews DOMA, it will strike the whole thing down and legalize gay marriage — everywhere.

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Michael Shammas

Second-year Harvard Law student, politico, Breaking Bad fan, cynical idealist, coffee addict, & Duke sports fanatic. Contact me at mshammas@jd16.law.harvard.edu.

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