Thinking Out Loud: DOMA is Still Here

But if you want to know how we’ll get full marriage equality anyway, just ask conservative Justice Scalia

The Supreme Court’s ruling on DOMA last month was incredible, no doubt – a turning point, a tipping point, a critical mass, and everything else we say when we’re trying to figure out where exactly we are in the great span of LGBT history. At the same time, we also know that the Court stopped short of recognizing full equality for gay and lesbian people and that half of us live in places where same-sex marriage is about as likely as Michelle Bachmann joining PFLAG to, you know, support Marcus. Anybody who professes to understand definitively what it all means for our future is probably doing it with a Magic 8-Ball.

Please bear with me, then, while I complicate things a bit more:

The Court didn’t strike down DOMA, no matter what CNN said repeatedly. Only section 3 was nixed, which defines marriage as between a man and woman for federal purposes. But section 2, absolving states from having to recognize same-sex marriages that happened in other states, is alive and well, for now. Back in 1996, it was this provision that everybody talked about. And section 2 is still significant because, historically, states have almost always recognized marriages that are legal in other states regardless of differing marriage laws in those states. For example, if you married your 15-year-old cousin in State X and then moved to State Y, which doesn’t do that sort of thing, State Y would still treat you as married. By contrast, at this moment, DOMA allows non-equality states to ignore legal same-sex marriages performed in places like California (yay!), Iowa or Maine.

Yet, the media and even the Court acted as if DOMA was over. I can think of two reasons for the double-talk.

First, technically speaking, Section 2 was redundant. States always had the right to ignore marriages performed elsewhere, despite long tradition (and the Full Faith and Credit clause, for you law wonks keeping score…). Even in ‘96, this part of DOMA always struck me as more of a statement of back-assward principle than real law. Remember that there were no gay marriages back then, but Congress, seeing a fight ahead, passed DOMA anyway. It served to let states off the moral hook for discriminating against gay people if ever they had to choose.

Seventeen years later, in Windsor v. United States, the Court called this thinking out for exactly what it was: “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” which is bad. Period. Oh, and by the way, DOMA is still law. Wait…what?

This leads me to the second reason everyone’s acting like DOMA is gone, gone, gone. To be fair, I can’t blame the Court for its schizoid half-ruling, as Edie Windsor didn’t bring suit about section 2. Given this limitation, the Court intentionally went as far as it possibly could without engaging in legal overreach (though conservatives are still squawking about overreach). But it will come as no surprise to anyone, least of all Justice Kennedy, who penned the opinion, that the language the Court uses for striking down section 3 will subsequently be used, very persuasively, by people challenging section 2 and every other state-level mini-DOMA that comes before the courts.

Even archconservative Justice Scalia agrees with me, and this is my favorite Supreme Court bonus factoid ever. Given the unusual combination of hysteria and defeatism in his dissenting opinion last week, it’s not hard to imagine him jumping off the roof of the Supreme Court building as a final declaration. Notwithstanding his misery, Scalia has probably figured out what comes next better than any pundit has, with more convincing logic than even within the majority opinion. Our victory is “inevitable,” he proclaims, and as easy substituting “DOMA” with any kind of marriage ban and applying the Court’s same reasoning: “Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples.”

Exactly. Thank you, Justice, for mapping out our road ahead so clearly.


Abby is a civil rights attorney-turned-author who has been in the LGBT rights trenches for 25+ years. She can be reached through her website:

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