Last week, New York, Connecticut, and Vermont all submitted amicus briefs to the Second Circuit Court of Appeals urging it to rule against the Defense of Marriage Act. Filed by states where gay marriage is legal, the briefs argue that only states have the right to regulate marriage and family relationships, echoing President Obama’s announcement earlier this year that gay marriage is “a states rights issue.”
While overturning DOMA would certainly be a victory for LGBT people, it will not mean comprehensive marriage equality; states could deny gay marriage rights if they so choose. Overturning DOMA will not assert positive marriage equality for LGBT people.
The amicus briefs were submitted to a case concerning Edie Windsor, a woman from New York who was made to pay $325,000 in federal estate taxes after her partner died. Although New York legalized same-sex marriage in 2011, the union was not recognized on a federal level.
Overturning DOMA would mean recognition of same-sex marriages by the government for federal purposes including tax benefits, insurance claims, and other such allowances which heterosexual married couples already enjoy. It would also mean that under the Full Faith and Credit Clause, even states that do not themselves grant marriage licenses to gay couples would have to honor same-sex marriages performed in other states.
Last year, the Obama administration commendably announced that the Department of Justice would stop defending Section three of DOMA, which defines marriage as “between a man and a woman.” This particular section has been deemed unconstitutional by several federal courts, as it violates the Equal Protection Clause of the Constitution, which demands equal protection under the law.
If DOMA were to be repealed on the grounds of being discriminatory, the federal government will no longer have the authority to refuse recognition of gay marriage. However, doing away with DOMA shouldn’t spell the end of the gay rights agenda.
Given that family and marriage law are generally accepted to be the purview of states, it is unlikely that courts would respect legislation that requires states to recognize gay marriage. Furthermore, if DOMA is overturned in the courts on states’ rights grounds, that precedent will make it difficult to guarantee marriage equality at the federal level. For comprehensive marriage equality, gay rights activists should work to overturn anti-gay marriage statutes on a state-by-state basis.
