The majority decision indicated that DOMA is unconstitutional because it violates the Fifth Amendment and the 14th Amendment’s equal-protection clause.
“While the Fifth Amendment itself withdraws from government the power to degrade or demean in the way this law does, the equal-protection guarantee of the 14th Amendment makes that Fifth-Amendment right all the more specific and all the better understood and preserved,” wrote Justice Kennedy in his opinion.
Striking down DOMA based on equal-protection grounds is key because it identifies the LGBT community as a group deliberately picked out and stigmatized, and acknowledges that it has been done for no particular reason or in the name of no particular state interest. This will open the door for plaintiffs nationwide seeking to sue within their home states seeking the same equal protections. Kennedy mentioned that “the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the state,” and it would be easy to make the same argument for marriage bans implemented at the state level.
So, what does DOMA being repealed mean for people around the country and for people right here in Pennsylvania?
Same-sex couples who are legally married, and live in a state that recognizes marriage equality, will have access to all of the 1,138 federal rights bestowed upon married people.
However, for the rest of us, it will be tricky.
There is no uniformity among federal agencies regarding the definition of marriage for the purposes of bestowing federal benefits. Some federal agencies adhere to what is known as a “place of celebration” standard. That means, no matter where a couple is legally married anywhere in the world, the union is recognized for the purposes of federal benefits. But other agencies, including the Internal Revenue Service and the Social Security Administration, adhere to a “place of residence” standard. To illustrate how uncoordinated the federal agencies are, the Department of Defense has a “place of celebration” marriage standard for active-duty military but the Department of Veterans Affairs has a “place of residence” standard.
In sum, Pennsylvanians who were married in a state that recognizes marriage equality will see little impact. They will not have access to the major federal benefits such as Social Security and estate-tax exemption. However, the largest impact DOMA’s repeal will have on Pennsylvanians (and the other states without marriage equality) will be in connection with immigration. Once the repeal is effective, if a same-sex couple — with one person being a foreign national — gets married in any state where same-sex marriage is legal, the foreign national can apply for federal immigration benefits, like residency and citizenship, despite being a Pennsylvania resident.
So what now? We bring the fight home to the Commonwealth of Pennsylvania — and it has already started. State Rep. Brian Sims (D-182nd Dist.) and State Rep. Stephen McCarter (D-154th Dist.) plan to formally introduce a bill in August that would extend marriage rights to same-sex couples in Pennsylvania.
“This legislation would re-define the definition of marriage as a civil contract between two people who enter into matrimony and eliminate the current prohibition against same-sex marriage in our commonwealth,” reads a memo that Sims and McCarter drafted. State Sen. Daylin Leach (D-17th Dist.) introduced a same-sex marriage bill in the Pennsylvania Senate last month and, in April, state Rep. Mark Cohen (D-202nd Dist.) put forth a measure that would allow LGBT couples to enter into civil unions in the commonwealth.
Full equality in Pennsylvania is just around the corner and we have the strength we need to go the extra mile. After 17 years, the voices of the millions of LGBT individuals that Congress pushed aside could not be silenced; we prevailed. Section 3 of DOMA has been struck down, and our victories with DOMA and Prop. 8 have sparked even greater momentum to continue our efforts for equality.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Send Angela your legal questions at firstname.lastname@example.org.