SCOTUS Strikes Down Prop 8 and Part of DOMA
What a thrilling day! The U.S. Supreme Court announced two historic decisions today and, once again, our world has changed. We are two steps closer to the goal of full equality for LGBT Americans.
The core of the so-called Defense of Marriage Act (DOMA) has been struck down, and the freedom to marry will soon be restored in California. An ugly chapter in our nation’s history is over for many Americans.
What about legally married same-sex couples living in a state that does not respect their marriages?
Legally married same-sex couples living in a state that does not respect their marriages may right away have access to some federal rights and benefits, but not to many others, at least not immediately. Federal agencies have different approaches regarding which state’s laws they look to in order to determine if a marriage is valid for federal purposes. Some, including the IRS and Social Security, have looked to the laws of the state where a couple lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs look to the state “with the most significant interest” in the marriage, and many have no explicit rule at all.
Some federal programs, including immigration, already use a “place of celebration” standard. This standard best provides certainty, clarity, and stability for couples, their loved ones, employers, government agencies, and others, especially in a society where people regularly move for jobs, family, and many other purposes. Such a standard would simply acknowledge that a couple is married for federal purposes regardless of where the couple lives; it wouldn’t tell a state how it must treat married same-sex couples.
For many programs, the administration can take steps to adopt the standard fairest to all married couples: the “place of celebration” standard. Some agencies can use this time-honored legal standard just by changing their practices. Others may have to change regulations, requiring a more lengthy process of proposing new rules and soliciting public comments, or laws. Because the Supreme Court’s decision does not require states to recognize the marriage of same-sex couples and does not guarantee that married couples who live in states with marriage bans will receive all of the federal benefits based on marriage, couples who live in these states should proceed with caution before deciding to marry. Depending on your individual circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. Couples should seek out individualized legal advice from a knowledgeable attorney before traveling to another place to marry.