Edward R. Weinstein, Esq.

Legal Update: The Defense of Marriage Act

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Even though I practice New Jersey Divorce and Family Law, I have always, since Law School, loved the study of our Constitutional and the times it has been challenged. As such, I have been closely following the Defense of Marriage Act (DOMA) as it has gone through several rounds of challenges. A brief background: in 1996, the United States Congress ratified DOMA in anticipation of states starting to allow same-sex marriage. This legislation was enacted with the overarching spirit that the federal government would not recognize same-sex marriages and gave state legislatures the right to not acknowledge them as well. These two points are stated in the two most controversial parts of the act:

Part 2: States are left completely on their own (as well as tribes and territories, and possessions of the United States) to recognize a same-sex marriage from another state, tribe, territory or possession. So if you are a gay couple married in New York (where same-sex marriage is legal) and you decide to a move to a state where it is unrecognized, your new state does not have to recognize it.

How does DOMA Part 2 affect Gay and Lesbian Couples living in New Jersey? Well if they are married in New York (where same-sex marriage is legal) and then move to New Jersey (where same-sex marriage is not legal), NJ is not required to recognize you as a married couple.

Part 3: This part states that under no circumstances can same-sex couples be viewed as married under any and all federal laws, programs, rights, and cannot derive any benefits. As such, any department administering rights and benefits must disregard valid state issued marriage licenses to same sex couples. Additionally, for federal purposes, marriage can only be the legal union of a man and a woman and spouse can only refer to a partner in a couple of the opposite sex.

How does this affect Gay and Lesbian Couples? If you are in a same sex relationship, and one partner works for the federal government, the other is not entitled to health insurance benefits.

There have been a plethora of federal court proceedings challenging DOMA on a multitude of benefits married gay and lesbian couples are being denied as a result of the act. Of most importance are the economic hardships suffered by same-sex couples with inheritance taxes, health insurance, social security benefits, family medical leave act, and state pension plans being denied under DOMA, even if they are legally married under the laws of their state of residence.

In November of 2011 Gay & Lesbian Advocates & Defenders (GLAD) filed Pendersen et al.v. Office of Personannel Mangement et al. on behalf of five couples and one widower who were being denied rights under DOMA . These couples had all been married in their residential state, but, due to the regulations of DOMA were denied the benefits simply because they were in same-sex marriages. July, 31, 2012, the Connecticut federal district court judge Vanessa Bryant, did rule that DOMA, specifically Section 3, does in fact “violate equal protection doctrine” and continued that it may “violate due process protection for the fundamental right to marry as well.” This decision went to further challenge every aspect of DOMA on multiple lines of argument and inquiry. Most notably, it chastises DMOA for adding to the history of discrimination of same-sex couples in this country and reminds us that regardless of sexual orientation, every person deserves equal protection under the law.

So what is next? Well as of September 19th, there are 21 cases pending at different levels of the Federal Court System. And as those work their way through the legal system there is no telling what will happen. While President Obama has stated he supports the repeal of DOMA, there doesn’t seem to be the momentum behind that effort in Washington. Many in the legal community have speculated that a DOMA case could reach the Supreme Court of the United States since it deals with equal protections issues and the delicate balance of state rights vs. what the federal government can control at the state level. We will keep you posted.

In the meantime, should you and your family need any legal guidance, please call my office at (732) 246-0909 for a free consultation. Our team of experts can help you establish legal protection for your partnership and your parental rights under the current Federal and New Jersey State laws.