DOMA Repeal: 30 States Would Be Forced to End Their Same Sex Marriage Bans


Earlier this month, Supreme Court Justice Anthony Scalia caused a great deal of controversy when he made a parallel between laws that ban bestiality and those that bar homosexuality. In the coming year, the Supreme Court would hear two cases that would determine the future course of gay marriage. DOMA is one of the two major cases (California's Prop 8 the other). Depending on the decision, the Justices could make gay marriage legal across the nation; or they could let many states continue to uphold their ban on gay marriage by allowing them to recognize only traditional marriage, which is defined as the union of one male and one female. 

If the other four conservative Justices share Scalia’s view on same-sex relationships, they could make it even more difficult for gay couples to get married, thereby giving a major win to proponents of traditional marriage. 

In recent years, gay marriage activists have gained many significant victories; in the courts, in state legislatures and on the ballot box. In 2003, Massachusetts became the first state that allowed gay marriage when its highest court ruled that the ban was not constitutional. After Massachusetts, the high courts in Iowa and Connecticut also ruled in a similar fashion. In three other states— Vermont, New York, New Hampshire — the legislatures voted to remove the ban on gay marriage. During the 2012 presidential election, voters in three states — Maryland, Maine, and Washington — voted for the first time to allow gay couples to wed.

DOMA, better known as the Defense of Marriage Act, was passed overwhelmingly by Congress in 1996. It defines marriage as the “union between a male and a female.”  Although gay couples are allowed to get married in many states, the law bars them from receiving many benefits. The act also allows states where gay marriage is illegal to not recognize a same-sex marriage that takes place in another state. Gay marriage activists want to get rid of DOMA because they believe that the law discriminates against married gay couples.

Two lower courts have deemed illegal the provision of DOMA that denied federal benefits (such as social security benefits) to married same-sex couples. As a result of those decisions, there are parts of the country where DOMA has been found not to be constitutional while it is legal in other areas. The forthcoming ruling by the Justices will certainly address this discrepancy.

The Supreme Court decision will have a tremendous impact on gay marriage. The justices could decide to maintain the decision of the lower courts, thereby allowing married gay couples to have the same benefits as heterosexual couples; or they could decide to rule on the very constitutionality of gay marriage. Such a ruling would have far reaching consequences. A decision that finds same-sex marriage constitutional will make it legal in all 50 states. On the other hand, if the justices determine that same-sex marriage is not constitutional, it would be a setback for gay marriage proponents; but such a ruling would deliver a major victory for supporters of traditional marriage. Hence, the stakes could not be any higher for both sides of this important issue.