What Happens After DOMA?

Homer asked an interesting question about DOMA in the comments on my previous post:

If DOMA is tossed, will people who marry in New York and then return to Arizona have the same federal benefit rights as someone who marries and stays in New York?

I don’t think there’s a clear answer.

New York State doesn’t have a residency requirement for marriage. So any same-sex couple in the country can go to New York and get married. Or a same-sex couple who lives in New York, Massachusetts, Iowa, etc., could get married and then move to another state that doesn’t have marriage equality, for any of the many reasons that people move around: to take a new job, to care for an elderly parent back home, to live in a warmer climate, and so on.

So if DOMA Section 3 goes away, which married same-sex couples would federal recognition “attach” to, and when? Could it attach, and then later detach when the couple leaves the state? And then attach again when the couple goes back?

You could argue that once the couple gets married and federal benefits attach, they can never be taken away. It doesn’t seem quite fair otherwise. But you could also argue that since Arizona doesn’t recognize a New York same-sex marriage, and the federal government has to defer to the states, then federal benefits can detach once the couple permanently moves to Arizona. I don’t know. Or what if the couple lives in New York but owns property in Arizona, or say Florida? Would federal taxes apply to that property? What about inheritance?

I imagine the case would be clearer if a married same-sex couple is merely visiting a non-equality state, not moving there permanently, and some incident happens that involves a federal law. I can’t think of any examples, but there might be one.

It’s not just federal benefits we’re talking about, like tax breaks or Social Security or family leave. There are more than 1,100 rights and responsibilities that come with federal recognition of a marriage.

The law can be fractal sometimes. One big issue gets resolved, but other little issues come up in its wake. A future court would probably have to resolve these issues as they come up. That’s not a bad thing — it’s just how the law works. But it’s certainly interesting.

2 thoughts on “What Happens After DOMA?

  1. I’ve been trying to find a relevant case involving first cousins, since that seems to be a case where a couple’s federal recognition of marriage could hinge, in the same way, on whether they married in a state that permitted first-cousin marriages or were living at the end of each tax year in a state that did so. I haven’t been able to find any relevant case law yet, though. My suspicion is that the states and the federal government just don’t care as much about the small number of first cousin marriages to vigorously prosecute them in such a case as anti-gay states will care about our marriages.

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