There is no doubt that the Supreme Court’s recent decision regarding the Defense of Marriage Act (DOMA) was historic, and will forever change the lives for millions of same-sex couples and their families. There are over 1,100 federal benefits now available to married same sex couples that were previously only available to married heterosexual couples.
But DOMA is not entirely deceased. There were 2 parts to DOMA – the part that remains intact is the part that says that states do not have to recognize the same sex marriage that was legally performed in another state. Think about this – if a heterosexual couple gets married in New York, they would still be married when they move to New Jersey. That is so much part of our culture that we don’t think twice. Married couples cross state boundaries all the time, expecting to maintain their marital status.
But that same sex couple, married and paying joint taxes in New York, is not recognized by the State of New Jersey as being married, and will not receive the same State spousal benefits. And not just, NJ, of course, but most of these United States.
What does that mean? In practical terms, it means that in those states, you are still considered unmarried. No right to inherit. No right to visit in the hospital, and to make medical decisions for each other. No right to act as a step-parent. You are still “legal strangers.”
And so, LGBT families must still protect themselves legally, even if they live in states that recognize their marriage. In case they move. In case they travel. You must still do second parent adoptions to protect the relationship of the non-biological parent to the children. It means that you still need health care proxies and wills.
We are making progress – no doubt. But there is still so very far to go.