More States Are Adopting Same-Sex Marriage Laws; Will This Lead to Changes to DOMA?

ALBANY, NY, December 10, 2012

The Defense of Marriage Act (DOMA) was signed into law in 1996. Now, 16 years later, the law is being challenged in both the courts and the polling booths. As noted in the New York Times, high courts in New York and Connecticut have held DOMA as unconstitutional and a violation of the equal protection clause of the Constitution. In addition to the judicial system taking action, voters also made their opinions clear in several states during this past election.

DOMA Defined

DOMA, in short, defines marriage as being between one man and one woman. The federal act means that states that do not allow same-sex marriages do not have to recognize marriages that took place in states that do.

Section 3 of DOMA is especially problematic given the changing nature of state marriage laws. The section states that the federal government does not have to extend federal benefits to same-sex marriage partners. This means a same-sex spouse of a federal employee is not entitled to health benefits. Or, if one of the partners dies, the surviving partner cannot collect survivor benefits from Social Security. Same-sex couples are also not permitted to file federal joint tax returns.

The Changing Tide

Before the elections in November, six states -- New York, Iowa, Massachusetts, Connecticut, Vermont and New Hampshire, as well as the District of Columbia -- legalized same-sex marriage. After the election, three more states were added: Maryland, Maine and Washington. Minnesotans voted down a DOMA referendum that would have strictly defined marriage as between one man and one woman. Unlike the first six states, where the courts changed the laws, the decisions of Maryland, Maine, Washington and Minnesota were based on a popular vote.

The tide is changing because people's attitudes are changing. According to CNN, in the 1990s most Americans, if asked if they knew anyone who was either gay or a lesbian, would have answered no. By 2010, however, 49 percent of Americans polled stated that they had a close friend or family member who was gay. As of 2012, that number had risen to 60 percent.

This is good news for same-sex couples in these nine states and Washington DC. It means that same-sex couples can marry and are recognized as married on a state level, and can live in any of these states or DC and have their marriages recognized. However, unless DOMA is repealed, they still cannot qualify for federal benefits.

Seek the Right Attorney

Same-sex couples, whether they choose to marry or not, should seek legal guidance to deal with the possible dissolution of their marriage or relationship. Even though same-sex marriage is legal in New York, the state's laws are not recognized by all other states, which continues to place same sex couples in a unique legal situation when it comes to divorce, benefits, inheritance and the ability to make medical decisions. Good legal counsel can help a same-sex couple place their relationship on a solid legal foundation despite the shifting social and political climate.

Colwell, Colwell & Petroccione, LLP
Family Law Attorneys
20 Corporate Woods Boulevard
Albany, NY 12210
Phone: 518-545-5892
Toll Free: 866-377-0285
Fax: 518-462-4031
Web: http://www.colwell-law.com