What the SCOTUS Rulings on Gay Marriage Could Mean for NY

The ruling could have implications for thousands of married same-sex couples

Tuesday, March 26, 2013

Hundreds gather outside of the Stonewall Inn to celebrate the passage of a same-sex marriage bill. (Stephen Nessen/WNYC)

The Supreme Court's ruling on DOMA and California's Prop 8 could have implications for thousands of already-married same-sex couples in New York.

The court's rulings could be narrow or expansive. They could either broaden the marriage franchise or uphold denying same-sex couples the right to marry. Here are some of the scenarios couples could face.

If the court upholds the bans on same-sex marriage:

Is there a chance couples married in places like New York will be invalidated?

Not likely.

Suzanne Goldberg, a professor at Columbia Law School, said the DOMA case is only about how the federal government recognizes same-sex couples. “The DOMA case will have no effect on same-sex couples who are married where they live,” she said.

The same goes for the Prop 8 case: “The questions before the court … is really whether the passage of Proposition 8 and Proposition 8’s taking away of the right to marry would violate the [Constitution’s] equal protection clause,” said Vickie Henry, the senior staff attorney for the Massachusetts-based Gay & Lesbian Advocates & Defenders. “It should not include the flip side of that, which is whether a state granting a right is permissible.”

How will married couples in states that recognize same-sex marriage, but don't legally allow the practice be affected?

“Unless they have some sort of law or policy change, what the Supreme Court does should not affect those states,” Henry said. She noted that a number of states have said that they will continue to honor out-of-state marriages regardless of what the court decides.

What recourse would couples have at the federal level if the restrictions remained in place?

As it stands, the federal government doesn’t recognize same-sex couples as legally married. The Prop 8 case would likely have little nation-wide implications if the lower court’s ruling were overturned. However, if DOMA—which only recognizes marriages between a man and a woman—remains in place, there’s only one avenue for couples seeking greater rights from the federal government.

“Then it’s the legislative process,” Goldberg said. Same-sex advocates would then have to continue to push for congressional legislation to overturn DOMA.

If the court rules the bans unconstitutional:

Will same-sex couples already married be recognized in any state?

“It’s possible that the Prop 8 decision will have an effect on other states, because all of this depends on what the court writes,” Goldberg said. The court could rule to uphold Prop 8, could rule to overturn it or decide that California didn’t have the standing to appeal it in the first place. If it were overturned, “everything but marriage” civil unions would be deemed unconstitutional.

Would already-married couples have to take additional action--even go so far as remarrying--to be recognized federally?

“People who are married are already married, and they would just have those marriages recognized,” said Henry. That would be the case if DOMA was struck down or the Prop 8 case was decided in favor of a universal right-to-marry.

What sort of retroactive rights could same-sex couples be entitled to?

This is something that will likely be a result of what the court decides, not part of its decision, if it comes up at all.

“I think it’s an interesting question about whether couples who are injured because their marriage wasn’t recognized should be able to get that recognition,” Goldberg said. “It’s not an argument that’s been made that I have seen.”

But of the two cases, the DOMA decision will likely be the one that generates subsequent cases.

“I think that there have been some very, very harsh applications of DOMA in certain situations and I could see some couples trying—really, even divorced couples—trying to go back and address those concerns,” said Henry, pointing to past tax losses because they weren’t federally recognized as married.

(Photo: As gay marriage is approved in New York, a street party erupts in front of the Stone Wall Inn in the West Village. Stephen Nessen/WNYC)


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Comments [3]


Cobey Hamilton's on air report is unfortunately INCORRECT and misleading regarding the possible effects of today's DOMA hearing on NY area residents.

Only one aspect of DOMA is under consideration today: the question of federal recognition of same sex marriages in those states in which they are legal. Today's case does NOT address the issue of the recognition of same sex marriages by other states.

Please correct this on-air report which has been used hourly today - it is very misleading. The on-air report says if DOMA is overturned same sex marriages would be recognized "in all states". That is not even at issue in the Windsor/DOMA case today, only the federal recognition question is under consideration. Only that one clause of DOMA is at question and could be overturned.

Thank you.

Mar. 27 2013 11:16 AM
dr dave ores from Lower East Side

I propose Civil Union for all lifestyles of people. Leave "marriage" for all the various churches. Think about it. The official State should not "license" religious ceremonies. Any religious ceremony. Bris, communion, marriage, bar mitzvah....etc. Better if straights, gays, atheists, all types of LGBT and whatever else is out there.... ALL of us ... get the exact same civil union from "the official State government" along with ALL the rights and obligations therein. The same equal RIGHTS for EVERYONE. Exactly like a driver license. Equal and fair for all.

And most importantly, .... leave the "M" word to all the hundreds of various Churches in America. Let churches and only the churches decide who they will or won't marry in their Church. And any other ceremony they offer in their church, temple or place or worship. That is their problem.

By insisting on "Gay Marriage" as a legal term of art, people who live in Church World mentally and spiritually WILL feel threatened and under attack. They will fight back with bare teeth....forever. It sets up a religious war. Religious wars NEVER go well for anyone involved.

I know the terms "marriage" and "spouse" are deeply entrenched in all our laws rules and regulations and rights...etc. in the very fabric of our national history. Going back 200 years. That was a mistake. Like putting "God" on Federal money. The "M" word goes back way further than 200 years.

Has no one in the dept of justice ever heard of "find and replace" function on Word? Just allow "wife" "husband" "spouse" "partner" to ALL be non-gender specific. Male or female. And "find and replace" the term "marriage" in all the State law books and "replace" with "Civil Union".

Now straights can no longer get "married' by the State. No one can. Civil Union only for all. If anyone wants to get married in whatever Church they are part of (and there are hundreds) .... they must FIRST have a civil union from the State they live in ..... and then they can go get married if they want in any damn Church, Temple or house of Worship they want.

See how this works? Now the official STATE govt. is out of the "marriage" business.

Problem solved.

Mar. 27 2013 10:21 AM
jeffrey farber from nyc chelsea

according to my spouses employer DOMA prohibits my enrolling in his health plan other as a spouse instead of as a domestic partner thereby only allowing me to enroll during annual enrollment once a year, and effectively leaving me uninsured for 6 months after losing my own employee health coverage. if either of us was a woman we would be extended the MARRIAGE benefit of being able to enrol at any time due to a "qualifying event" such as job loss or benefits loss for any reason. according to a barrage of counsels christine quinn's office contacted for me, the employer is correct.

Mar. 27 2013 09:19 AM

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