Paul McGuire | Legally LGBT
There are two big cases coming before the United States Supreme Court this term that involve LGBT rights. Most people in California know about the challenge to Proposition 8 that has been making its way through the court system for the last four years.
Fewer are aware of the challenge to the Defense of Marriage Act (DOMA), mostly because DOMA was passed while Bill Clinton was President. DOMA went largely un-noticed until same-sex couples started to gain legal recognition and sought the same from the federal government.
At first glance it may seem like the challenge to Prop 8 is more important because a decision by the Supreme Court could allow same-sex couples to marry again in California. But consider for a moment that California is one of the few states where the domestic partnerships available for same-sex couples provide all the rights of a marriage. Also, a couple in California who really wants to marry can travel to Washington State. Thus, even if the Supreme Court decides that Prop 8 is constitutional, California couples won’t be so bad off.
DOMA, on the other hand, prevents the federal government from recognizing same-sex couples that are validly married as spouses. DOMA also prevents the federal government from extending benefits to same-sex couples that are in domestic partnerships or civil unions.
The way DOMA does this is by defining the words marriage and spouse for the purposes of federal law. DOMA defines marriage as “a legal union between one man and one woman as husband and wife.” Spouse is similarly defined as “a person of the opposite sex who is a husband or a wife.” Thus, by definition, the federal government cannot recognize a same-sex couple as married, nor can they recognize a domestic partner or partner in a civil union as a spouse.
There are a number of ways in which this is problematic. Most importantly, DOMA prevents same-sex married couples from taking advantage of a number of tax deductions married couples enjoy during life and after the death of one partner. Another major program run by the federal government is social security. Many of the benefits that a married couple can provide to their spouse in times of financial hardship or after their death through social security are not available to the surviving partner.
Finally, DOMA prevents gay men and lesbian women from conferring U.S. citizenship on foreign-born partners. Typically a U.S. Citizen can marry someone who is not a U.S. Citizen and sponsor them for a green card, ultimately leading to transmitting citizenship to the spouse and any children.
Both cases will have oral arguments at the Supreme Court in late March 2013. Prop 8 is scheduled for March 26. DOMA is scheduled for March 27. It is hard to say how soon the Supreme Court will issue a decision after oral arguments, but many hope that an opinion will be out by the end of the term in June.
If DOMA is found unconstitutional, it is up to Congress to expand the various benefits associated with marriage to same-sex couples in civil unions or domestic partnerships. If DOMA is upheld, it is up to Congress to repeal it or replace it with something else. That doesn’t seem very likely considering House Republicans have spent millions of taxpayer dollars to defend DOMA after the Obama administration declined to defend it.
The road to equality is long. We will not find immediate acceptance even if both cases are decided in our favor. Still if we can receive federal recognition of our relationships, we will be one step closer to that goal.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com