What the demise of DOMA means for the Philadelphia region
The following is a commentary submitted by the author.
Today's rulings from the U.S. Supreme Court regarding marriage equality are truly watershed moments in the fight for legal recognition of same-sex couples. In the seminal case of U.S. v. Windsor, the court held that the so-called Defense of Marriage Act (DOMA) was unconstitutional because it fails to protect the "personhood and dignity" of validly married couples. Considering that it was not long ago that the Court upheld the constitutionality of statutes that criminalized sexual conduct between consenting gay couples, this was truly a remarkable ruling.
I had the opportunity to attend the oral argument in the Windsor case before the Supreme Court back in March and left with a feeling of cautious optimism that the justices had to realize that the rationale for passing DOMA made no sense. In 1996, Congress unapologetically asserted that DOMA was passed "to express moral disapproval of homosexuality." This couldn't be constitutional in 2013, could it?
Nonetheless, in light of some of the conservative rulings coming out of the Court this week in the areas of affirmative action, voting rights, and employee protections, I was concerned that we would not be able to muster the five votes necessary to overturn this discriminatory law.
The world has changed dramatically since that law was passed, and indeed there are now 12 states, plus the District of Columbia, where marriage equality is afforded to same-sex couples. The Windsor case sought only to have the federal government recognize that couples who were lawfully married have access to all of the 1000-plus federal rights available to married people.
Generally, the Court doesn't like to make new laws or rights, but does want to reflect the realities of the world outside its chambers. Today's decision allows the states to continue their trend towards recognition of full marriage rights for same-sex couples without forcing any state's hand prematurely.
What now for Philadelphia region?
So, what does this means for couples in the tri-state area of Pennsylvania, New Jersey and Delaware? The answer is different in each state, but this region actually represents a microcosm of how today's decision will impact couples across the country.
In Delaware, which will begin issuing marriage licenses on July 1st, married same-sex couples will be entitled to all of the state and federal rights that married couples have routinely received. In New Jersey, it gets a bit more complicated because of the state's decision to allow "civil unions" rather than marriage between same-sex partners. Civil unions afford same-sex couples in New Jersey all of the same state rights and privileges of married couples, but by a name other than "marriage."
Today's ruling does not affect same-sex couples in either state, although it does suddenly highlight the differences between marriages and civil unions. Civilly united couples in New Jersey are now suddenly denied the federal benefits that married couples in Delaware enjoy.
The news in Pennsylvania is bittersweet. While we celebrate the victories on the national level, Pennsylvania's own miniature version of DOMA ensures that marriages between same-sex couples are not recognized, regardless of where they were performed. So, while today's ruling was truly a watershed moment, it has absolutely no bearing on couples in Pennsylvania. The state continues to provide absolutely no marital rights to same-sex couples. In the meantime, we are still recommending that couples create documents such as wills and powers of attorneys to create some legal protections for their families.
What are options for same-sex couples in Pennsylvania?
We at Mazzoni Center are regularly asked whether it makes sense for a Pennsylvania couple to legally marry in one of our neighboring states. The issue is complicated, since that marriage will have no impact on any state rights here. However, after today's decision, that couple might be entitled to some federal rights.
With the demise of DOMA, the existing laws and regulations will need to be consulted to determine how the federal government defines a marriage in a particular instance. For example, in immigration law, a couple is considered married if the marriage was "valid where celebrated," so a citizen can sponsor his or her partner for a green card, regardless of where they live.
In contrast, that same couple will likely not be able to file a joint tax return, because the tax code relies on residency to define marriage.
The additional wrinkle with out-of-state marriages is that they may be more permanent than couples may realize. Since Pennsylvania does not recognize these marriages, they will not allow couples married elsewhere to divorce here. Many states require up to a year of residency in order to file for divorce, so a couple that has a romantic weekend in New York may find themselves "wedlocked" forever if neither of them has lived there for a year or more.
Obviously, marriage is something that should not be entered into quickly, and couples are advised to talk to an LGBT-competent attorney if they are considering doing so.
Litigation, legislation, education
So, what's next? We are going to have to continue advancing the rights of LGBT families in Pennsylvania, which will be achieved through litigation, legislation, and the continued education of the public and our government officials.
We're still analyzing the decisions and strategizing about what the next steps should look like, but we've got some exciting ideas on the horizon. So, while we raise a glass and toast today's exciting decision, we know that we still have more work until we have achieved full equality for all.
David Rosenblum is legal director of the Mazzoni Center in Philadelphia.