Global Family Law Services

Same Sex Marriage/Divorce – Federal DOMA: A Brief History

| Jul 3, 2013 | Same-Sex Marriage

As you know if you’ve gone online, turned on your television or radio, or even picked up a newspaper recently, the issue of same sex marriage is a particularly hot topic right now. But it’s not a new issue, to be certain. And, in a relatively short period of time – from the Clinton administration to the Obama administration – the stance of the federal government has vastly changed as the public opinion is changing.

Gay rights advocacy reached a fevered pitch in 1993 when the Supreme Court of Hawaii determined that the state’s ban on same sex marriage required a strict scrutiny review. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). While the ban was ultimately upheld, the threat of a state allowing same sex marriage caught the nation off guard. After all, not only is there a question of one’s particular moral compass, but married couples are entitled to a multitude of financial benefits that cohabiting couples aren’t. Not to mention the question of whether a state would have to recognize – even if it didn’t want to – a same sex marriage solemnized in another state.

In the aftermath of Baehr, the federal government was pressed to take action. Marriage is a state issue, which means that the United States Constitution probably restricted a nationwide ban of same sex marriages. To get around this, in 1996 the federal government sought to defend the sanctity of traditional marriages by enacting the Federal Defense of Marriage Act (“DOMA”). With this controversial law the federal government was able to accomplish two things. First, DOMA defined marriage as a union only between a man and a woman. Thus, it eliminated any spousal benefits same sex couples might be entitled to under federal law. Second, DOMA permitted states to refuse to recognize same sex marriages performed in another state.

While various laws both for and against same sex marriage have made the rounds through various courts over the years, the United States Supreme Court had yet to offer its opinion, until very recently. On June 26, 2013, the US Supreme Court declared DOMA unconstitutional. In United States v. Windsor, the Court found that DOMA deprived individuals of the equal liberty entitled to them under the 5th Amendment. President Obama declared the Supreme Court’s decision “a victory for couples who have long fought for equal treatment under the law”. Certainly this decision has been viewed as a victory by gay rights advocates, even as retractors are regrouping from this blow. But the decision does very little to advance same sex marriages in states that do not allow them. Windsor merely established that if a state recognizes same sex marriage, the federal government will also recognize these marriages. Windsor has no bearing on states, like Ohio, that ban same sex marriage.

However, Windsor does create an inherent conflict between states that do not recognize same sex marriage and those that do. For example, a same sex couple that is married in New York, but wanting to divorce in Ohio, may find that they can’t get divorced at all. The laws are unclear as to whether divorce laws can be applied when the state says the marriage is a nullity. Thus, the New York couple could find that upon their split there are no rights to spousal support, no rights to children, and on and on. Ultimately, this conflict may push same sex couples legally married in other states to challenge Ohio’s ban. In any event, it is clear that while Windsor will have no immediate impact on same sex marriage in Ohio, this debate is far from over.