DOMA Didn’t End, It Wasn’t Struck Down, and Stop Saying That It Was

Unless you have been living under a rock the last couple of days, you likely know that the Supreme Court of the United States (SCOTUS) recently struck down part of the Defense of Marriage Act (DOMA). However, if you have been reading about the decision in many online sources, you may have been misled.

In many of the news outlets that I have been looking at over the last 48 hours, I have seen one HUGE mistake being reported again and again. This mistake is news outlets reporting that DOMA has been repealed or struck down.

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Sadly, this isn’t what actually happened. The ruling that the SCOTUS handed down did not strike down the entirety of DOMA, but rather, the ruling struck down a specific section within the larger law. Specifically, the ruling by the SCOTUS struck down Section 3.

    (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage’ and `spouse’

    `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.
    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
        `7. Definition of `marriage’ and `spouse’.’.

Assuming that your legalese is up to scratch, you know that Section 3 of DOMA was the section of the law that was being used to stop same-sex couples (i.e. those who have been legally married in a state which allows same-sex marriage) from accessing the same benefits that are given to heterosexual couples. So, by striking down this section, the SCOTUS paved the way for a lot of really positive things… in the states that have legal same-sex marriage.

In these states, the federal government can no longer deny access to the benefits of marriage based on the fact that the marriage is between two members of the same-sex. This means that, unlike the day before the decision, immigration, pension, healthcare, and tax benefits have to be extended to same-sex couples in the same way that they are in heterosexual couples.

Needless to say, this is great news, even if it only truly impacts a select subset of the LGBT subset of the population of the US.

However, what would have been ever greater news would be if the entirety of DOMA was struck down. If this were the case, not only would Section 3 (the federal ban on benefits) be removed from the books, but so would Section 2.

    (a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof

    `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’.
    (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
        `1738C. Certain acts, records, and proceedings and the effect thereof.’.

This section of DOMA is the section that bars the federal government from enacting any legislation that would open the ability to marry up to same-sex couples. Basically, it makes it so that same-sex marriage, as it is at the moment, must be won on a state-by-state basis.

Should this section had fallen to the pen of the SCOTUS as well, the federal government could have, and likely would have, drafted a bill aimed at making same-sex marriage legal nationwide. While this would not have likely been successful (as you could imagine given the Republican controlled House), it would have almost definitely been stalled for the remainder of the Obama presidency, giving the Democrats strong political fire power come election time.

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