On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor, which declared Section 3 of the Defense of Marriage Act (commonly known as DOMA) unconstitutional. What many people don’t realize is the Supreme Court did not review or rule on Section 2 of DOMA in United States v. Windsor, and thus Section 2 remains good law.
Section 2 of DOMA states:
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
More simply put, states that do not recognize same-sex marriage may still refuse to recognize same-sex marriage performed in other states where it is legal. Thus, if a same-sex couple was legally married in a state that recognizes same-sex marriage, and then moves to a state that does not recognize same-sex marriage, that couple may be denied certain benefits other legally married couples in that state are otherwise legally entitled to.
Another problem that legally married same sex couples are encountering when moving to a state that does not recognize same-sex marriage is how to get divorced. Currently there is a case pending in Indiana in which a same-sex couple who was legally married in Massachusetts are now trying to get divorced in Indiana, where they currently reside. Donald Schultz Lee has filed for a divorce from his husband in Indiana. The only problem is Indiana does not recognize same-sex marriage, and under Section 2 of DOMA, Indiana is not required to do so.
Therefore, Donald Schultz Lee, and other same sex couples seeking to divorce in states that do not recognize same-sex marriage are in for a legal battle that could result in a divorce being granted, or even, potentially, result in Section 2 of DOMA being challenged, which could bring DOMA all the way back to the Supreme Court.
Source: www.therepublic.com, “Man who married same-sex partner in Massachusetts tests Indiana law with divorce petition”, The Associated Press, July 1, 2013.
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