One of the most basic mistakes in the reporting on DOMA is that the entire law was thrown out (For example, see New York Daily News). No. The court ONLY decided on Section 3 of DOMA, since Windsor was only challenging that section. This means that Section 2, is still in force. For Queer Americans who are legally married and then move to a state where there is no marriage equity, there will be endless trouble. Section 2 states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Although Windsor was only challenging Section 3, the Justices could have examined the constitutionality of Section 2, but chose not to. As I said in the prior post:
… today’s Supreme Court decision in Windsor MAINTAINS the abrogation of the Full Faith and Credit clause found in the federal DOMA law (contracts entered into in one state MUST be recognized in another state–except now, for marriage). That remains Constitutional. Despite the soaring rhetoric of the Windsor decision, ultimately, it’s about the state of New York and how it constructs “citizenship”. There is NO remedy for any partnered queers in the hater states with state level DOMA laws (states with bans on marriage equity) or queers in half-baked hater states (states with only Civil Unions and/or Domestic Partnerships, but no marriage equity). Furthermore, if you get married in New York and then move to Texas, it is the state in which you reside that will determine your access to federal benefits–which is an overturning of the federal supremacy clause and it is a violation of the “full faith and credit clause.”
So, I really do not want to celebrate a decision that splinters the rights and benefits of my queer sisters and brothers, leaving us to depend on the whims of our state political leaders to access federal rights and benefits. It is Confederate restoration politics. For those folks who are celebrating, y’all might as well be whistlin’ “Dixie.”