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?
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)