Family Law After The Death of DOMA

On behalf of The Marks Law Firm, L.L.C. posted in Marriage on Friday, March 29, 2013

As many readers are likely aware, the United States Supreme Court heard oral argument on Wednesday in a case challenging the constitutionality of the federal Defense of Marriage Act (DOMA). Passed in 1996 and signed by a reluctant President Clinton in the middle of the night, DOMA defined marriage for federal purposes as exclusively between a man and a woman. Consequently, individuals legally married in those states that allow same-sex marriage nonetheless could not enjoy the more than one thousand federal benefits spouses in opposite-sex marriages enjoy.

After oral argument, almost all court watchers agree that at least five Justices will vote to invalidate DOMA, though the legal basis remains unclear – four Justices seem to believe that discriminating against same-sex marriage violates the Equal Protection Clause under even rational basis review, while Justice Kennedy felt that the federal government invaded the province of the states under a federalism argument.

Regardless of the rationale, the Court striking down DOMA creates a variety of questions of immediate interest to Missouri residents.

First, if the federal government cannot discriminate against same-sex marriages and must offer spouses of same-sex marriages the same benefits as those currently received by spouses of opposite-sex marriages, it logically follows that the federal government must give full faith and credit to same-sex marriages. If so, it also follows that states that do not allow same-sex marriages would now have to recognize those marriages as valid and not void against public policy. Missouri, which prohibits same-sex marriage, would now have to recognize as valid the marriages of same-sex couples who are Missouri residents and who marry in one of the states in which same-sex marriage is available.

Second, what state benefits must Missouri provide to its same-sex resident couples with valid marriage licenses? It would seem that Missouri could not deprive those couples of the ability to claim one another on their state income tax returns or state health care benefits – especially if the Supreme Court strikes down DOMA on equal protection grounds.

Third, the right to marry implies the right to dissolve a marriage. If Missouri must recognize same-sex marriages as valid despite public policy that says otherwise, Missouri would have to afford parties to such a marriage the right to a divorce. Ironically, Missouri may dissolve a same-sex marriage before it allows those marriages to occur!

While many other consequences will flow from the end of DOMA, the most immediate will be how the state treats individuals lawfully married in those states that recognize same-sex marriage. Given the end of DOMA seems highly probable, the state should begin developing contingency plans for the influx of administrative issues that will appear starting in July.

If you have questions about your rights as a partner in a same-sex marriage, contact us – we can help.