Explainer: What the DOMA decision means for Virginia

The Supreme Court ruled the Defense of Marriage Act unconstitutional. So what does it mean for Virginia?

June 26, 2013; 3:31 PM • by Nathan Cushing

What is DOMA?

The Defense of Marriage Act, a federal law passed by Congress and signed by President Clinton on September 21, 1996, permitted states to not recognize same-sex marriages legally performed in other states.

Additionally, Section 3 of the law specifically prevented federal marriage benefits that straight couples have from applying to same-sex couples. These benefits included: Social Security survivor benefits, insurance benefits for government employees, immigration, filing joint tax returns, among others.

Why is DOMA now unconstitutional?

When DOMA became law, no state recognized same-sex marriages. As states passed same-sex marriage laws (13 states now recognize same-sex marriages, with Maryland being the most recent), more people challenged DOMA in federal court, particularly the Section 3 provisions. “In 2011, the Obama administration refused to defend the law in court, believing it to be unconstitutional.”

The Supreme Court agreed, ruling so in today’s 5-4 decision. Justice Anthony Kennedy wrote in the majority opinion:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.

So is gay marriage now legal?

No. The SCOTUS decision doesn’t mean that all states must allow same-sex marriage. It only means that DOMA is unconstitutional. The decision ensures that the federal government must grant full marriage benefits to same-sex couples. Here are many of the benefits same-sex couples now have (PDF).

Put plainly: While the federal government can’t treat same-sex married couples differently from straight married couples, state governments still can.

So what does this mean for Virginians?

It’s a mixed bag. James Parrish of Equality Virginia said today’s decision is “a big win for our community.” One of the biggest wins is that same-sex military couples (Virginia has a rather large military population) now receive military benefits like health coverage, housing allowances, and other items heretofore denied.

Same-sex couples now living in Virginia who were married in other states that allow gay marriage can now file joint tax returns with the federal government, although they can’t file jointly on their Virginia taxes.

Parrish said the end goal for same-sex marriage rights in the Commonwealth is still far off. Virginia’s ban on same-sex marriage remains, and nothing in today’s SCOTUS decision changes that.

As for other state benefits afforded to married couples, Parrish said that “it really isn’t clear” how Virginia will address applying those benefits to same-sex couples.

How can Virginia’s law change?

Two ways. The hardest way is through legislation. The easiest way is through litigation.

The General Assembly could pass a law allowing same-sex marriages. But that would require changing the state constitution by revoking the Marshall-Newman Amendment, a process that requires the General Assembly to pass a bill in two consecutive legislative sessions before going before the public via a referendum. Legislators can also call a Constitutional Convention to re-amend the constitution.

The quickest (and most likely) way for Virginia law to change is through the courts. “It does appear that some of the language used in [today’s] opinion could” be used to argue that any state denying same-sex marriages is unconstitutional, Parrish said. While he prefaced this by saying he’s not a lawyer or legal expert, he’s nonetheless heard legal chatter saying that today’s ruling “definitely opens the door” to that possibility.

Correction: An earlier version of this article omitted the fact that Virginia’s constitution must be re-amended before allowing same-sex marriage.

photo by Mark Fischer

June 26, 2013 3:31 PM 2