Marriage & The Supreme Court: What Does It Mean?

Now that the Supreme Court has ruled on the Defense of Marriage Act (DOMA) and Proposition 8, what will it mean for gay couples, states, the federal government, and religious leaders across the country?

• A gay couple who is legally married under the laws of their state will be treated as married under federal law. This means that those couples who have made a lifetime commitment to each other in a state that recognizes that commitment will be able to access the full range of federal protections to care for their spouse and family. This includes the ability to cover their spouse on their health plan (and do so without tax penalty), access spousal benefits under Social Security, provide protections for their family if they are in the military or are a veteran, petition for an immigration visa for their spouse, and even pass along shared property when one dies without being penalized by the estate tax. In short, they will have the same protections as every other married couple.
• No state will be forced to recognize a marriage performed in another state. The DOMA case before the Court challenged only Section 3 of that law—the provision that said the federal government would only recognize marriages between a man and a woman, regardless of the laws of the states. Section 2 of DOMA remains on the books, which says that no state shall be required to recognize the marriage of a gay couple, even if it was legal in the place where it was celebrated. And the Proposition 8 ruling left in place the lower court’s decision in that case, which applies only in California—it did not grant a broad right to marry nationwide.
• A gay couple who is legally married but moves to a state that does not recognize their marriage will have a patchwork of protections. There is not one uniform test for whether a marriage is valid under federal law—each individual spousal protection uses its own definition. So if a gay couple is legally married but moves to a place where their union is not recognized, their marriage will be recognized by the federal government for some purposes but not others. It will depend on whether each individual federal law or regulation recognizes a marriage as valid if it was legal in the place of its celebration or if the provision looks to whether the marriage is legal in the place where the couple resides (or some other test, but those two are the most frequent). For those federal laws or programs that base spousal protections on whether a marriage is valid in the place of residence, that gay couple’s marriage would be ignored, while at the same time being recognized for purposes of federal law in other areas.
• Immigration law uses a “place of celebration” test, so whether or not the Senate includes the Uniting American Families Act in the immigration reform bill, a gay couple could get married in one of the 12 states where it is legal, move to a non-marriage state, and continue to be viewed as married by the federal government for immigration purposes. And they could apply for a spousal visa in the same way as any other married couple—even if their state of residence does not recognize their marriage.
• In order to provide uniform protection to married gay couples, there are some places where the law must be changed. There may be areas where the Obama Administration could broadly interpret the Court’s decision to ensure that gay couples are able to access important protections under federal law. But for some purposes, like the Social Security Act, a statute dictates that a marriage may only be recognized if it is valid where the couple resides. That means that a legally married couple who moves to a non-marriage state to retire will not be eligible for Social Security spousal benefits unless and until that definition in the law is changed. So this same gay couple who would be considered married under federal immigration law would simultaneously be considered strangers by the Social Security Administration.
• No church or religious leader will be forced to recognize or perform any marriage. The First Amendment guarantees that no pastor, priest, or other religious leader would ever have to perform a marriage that contravened their faith. The Supreme Court decisions do nothing to change that.