Even though the Supreme Court overturned a key portion of DOMA (Defense of Marriage Act) yesterday, a significant part of DOMA still exists. Section 2 of DOMA states that states who do not have same-sex marriage do not have to recognize same-sex marriages from states that allow it. Why is this important and discriminatory?
Let’s take for example a heterosexual couple – Nancy and Joe. They are married in New York and subsequently move to Alabama. Their marriage is valid in New York and it will be valid in Alabama. In fact, it will be valid everywhere in the United States and abroad.
Let’s take another example of a same-sex couple – Nancy and Diane. They are married in Massachusetts where same-sex marriage is legal. They subsequently move to Alabama where same-sex marriage is not allowed. They are considered married in Massachusetts and in the other 12 states and the District of Columbia but they are not considered married anywhere else in the United States.
In terms of divorce, this has a big impact on Nancy and Diane. Since they both live in Alabama where their marriage isn’t legal, they therefore cannot get a divorce in Alabama. They also cannot get a divorce in Massachusetts or in any of the other 12 states and D.C. because all states require that you reside in that state in order to obtain a divorce. So even though Nancy and Diane got married in Massachusetts, they cannot divorce here. In fact, they cannot divorce anywhere. They are forced to stay married together. They cannot get remarried to anyone else – same sex or otherwise, because it would be considered bigamy depending on where they would live.
I have no doubt that Section 2 of DOMA is also unconstitutional and it is only a matter of time before it gets repeals by Congress or through another Supreme Court decision. When that day comes, all 50 states will have to recognize same-sex marriage. It doesn’t mean however, that they must give out same-sex marriage licenses. They simply have to recognize them from other states.