DOMA: Waiting For The Drop of The Other Shoe


Maryland has joined the ranks of those states that permit same sex marriages.  So many are now asking, “What’s left?”

What’s left is the other shoe – the Defense of Marriage Act, or “DOMA” as the pundits refer to it.  In March, 2013, the United States Supreme Court held oral arguments on whether DOMA is constitutional.  The Court has not yet issued an opinion on DOMA.

DOMA limits the recognition of marriage to be between one man and one woman.  If DOMA is constitutional then the federal government would not recognize those married in Maryland as being eligible for federal benefits arising from marriage.  If it is not constitutional then those married in Maryland (and other states) could be eligible for federal benefits arising out of a legally recognized marriage.  This makes the Supreme Court’s decision one of “states’ rights” and allows the Court to avoid a blanket ruling on the constitutionality of same sex marriages.  In other words, the justices are saying:  “We don’t want to rule on whether there is a constitutional protection for same sex relationships, but we do think that the federal government cannot tell the states what is a marriage.”  So, DOMA would be invalidated on that basis and Marylanders could still marry and could be eligible for federal benefits.

But at this point the situation gets really confusing.  Why?  How about all those states that do not recognize same sex marriages?  Under a ruling saying DOMA is illegal, each state’s position on same sex marriage would remain unchanged.  In those states in which same sex marriage is not recognized, residents of those states might not be allowed eligibility for federal benefits.  In those states which recognize same sex marriages, those couples may be allowed federal eligibility for federal benefits.  Some states run federal programs – what happens when a same sex couple married in Maryland moves to a state that doesn’t recognize same sex marriage and which administers federal programs such as social security disability claims?  Will that mean that the couple that has moved will not be able to secure that federal social security benefit because the new state of residence does not recognize the Maryland marriage?  Would the new “non-recognizing” state of residence somehow be required to recognize the marriage performed in Maryland?

By the end of this month, we may at last know the position of the highest court of the land on DOMA and be able to form some opinion on the interplay of the relevant state and federal law.  In Maryland, one thing has become clear: to qualify for the advantages of marriage under Maryland law, couples must be married and not merely “domestic partners”. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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