In a 5-4 decision the U.S. Supreme Court has ruled the Defense of Marriage Act (DOMA) unconstitutional. It has ruled that failing to recognize gay marriage rights granted by States who allow gay marriage violates States rights. The majority opinion, penned by Justice Kennedy, states “regulation of domestic relations is an area that has long been regarded as virtually exclusive province of the States.”

The court specifically states that this ruling only applies to the federal definition of marriage. “Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.” Therefore, it seems that States still cannot be compelled to allow or prohibit same-sex marriage, nor can they be compelled to recognize same-sex marriages from another State.

Things get complicated when you consider a same-sex couple married in a State which recognizes same sex marriage moving to a State which does not (for the sake of simplicity, let’s say they resided in the State of marriage instead of simply visited it). Theoretically, upon moving to the second State their marriage would be annulled on both the federal and state level. Further text of the opinion suggests this. In arguing against DOMA the court says, “It forces same-sex couples as married for the purpose of state law but unmarried for the purpose of federal law…”

If, however, the case was that in the new state they would not be married on the state level but they would still be married on the federal level, this would create a de-facto federal legalization of gay marriage. That directly opposes the principles upon which they struck down DOMA that “regulation of domestic relations is an area that has long been regarded as virtually exclusive province of the States.” Therefore, it must be assumed that the former circumstance is the reality.

Ignoring the procedural difficulties of having federal marriages flare into and out of existence based on the geographic location of a couple, another issue arises. What happens if that same couple moves back to a State which recognizes gay marriage? Will they need to be married again, or was their marriage simply dormant during their stay in the State which does not allow gay marriage? The Court does not even attempt to address these issues, and I expect a great deal of litigation is on the horizon.

Additional Resources

Supreme Court of the U.S., United States v. Windsor: http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf