Same Sex Marriage Across State Lines

April 17, 2014

Last June, the Supreme Court struck down a provision in the Defense of Marriage Act (DOMA) and ruled that in states where same sex marriage is legal, the same sex couples are entitled to receive the same federal health, tax, and Social Security benefits as heterosexual couples receive.  However, the Supreme Court stopped short of declaring that same sex couples have the right to marry.

Therefore, same sex couples have the right to marry in some states, but same sex marriage is illegal in others.  Currently, same sex couples can marry in 17 states and the District of Columbia.  A large majority of states have a constitutional ban on same sex marriage, and four states have allowed civil unions and domestic partnerships.

The imbalance occurs when a same sex couple crosses state lines.  For example, if a same sex couple gets married in Iowa (where it is legal), and then moves to Nebraska (where it is illegal), what happens to their union?  Nebraska won’t recognize their marriage as valid, and so the couple will not receive the same protections as heterosexual married couples.

Is this fair? The debate has continued this year on these questions.  Several judges have struck down state bans against same sex marriage, including the one in Virginia.  The Virginia opinion compared the ban on same sex marriage to the ban against interracial marriage that was struck down in 1967.   The decision has been appealed, but the Virginia Attorney General has filed a brief supporting same sex marriage.

Additionally, addressing the issue of fairness, some judges have ruled that states must recognize out of state same sex marriage.  Just this week, a federal judge ordered that Ohio must recognize the marriage of same sex couples performed in other states.  Earlier in February, a federal judge ordered that Kentucky must recognize the marriages of same sex couples performed out of state.  In March, a federal judge ordered that Tennessee must recognize same sex marriages of couples who wed in other states.  These state decisions and appeals are forging a steady path to the Supreme Court over the national battle over same sex marriage.

Once the issue reaches the Supreme Court again, the justices will have to consider the inequity of same sex marriage across state lines.  Until then, same sex couples are forced to stay in states where same sex marriage is legal if they want the same marriage protections and benefits as everyone else.

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