Beyond DOMA


Same-sex couples and supporters of freedom to marry in Colorado have plenty to celebrate this year, but they still face many unanswered questions after a big marriage equality victory for the American Civil Liberties Union at the Supreme Court on June 26.

On that day, the Supreme Court struck down the core of the poorly named Defense of Marriage Act (DOMA) by ruling in favor of Edie Windsor, a delightful 80-year-old widow represented by the ACLU. She and her spouse, Thea Spyer, had been together for 44 years, through sickness and health, including Thea’s paralysis from multiple sclerosis. They wanted to be married for all their years together, finally marrying legally in Canada in 2007. At the time Thea passed away in 2009, New York recognized their marriage as valid, but the federal government under DOMA did not. Edie was hit with a $363,000 federal estate tax bill that she would not have owed if her spouse had been a man.

In United States vs. Windsor, the Supreme Court struck down the part of DOMA that blocked the federal government from recognizing same-sex marriages approved at the state level. More than a thousand federal rights and responsibilities of marriage will now apply to all valid marriages at the state level. This is good news for the 30 percent of Americans who live in marriage equality states, with California now re-joining the list thanks to another decision the same day. In Hollingsworth vs. Perry, the Proposition 8 case, the Supreme Court did not rule on the merits of the case, but a lower court ruling was allowed to stand, restoring freedom to marry in California.

But what about Colorado? Because of the Amendment 43 ban passed in 2006, same-sex couples in Colorado cannot marry. Legislators went as far as they could go this spring by passing strong civil unions legislation giving couples most of the rights of marriage at the state level. I had the pleasure of officiating about a dozen civil union ceremonies on May 1, the day the law went into effect. But civil unions still aren’t marriage.

Until Windsor, the distinction didn’t matter as much, because even in marriage states couples did not get federal rights of marriage because of DOMA. With DOMA struck down, couples in marriage states will now have many rights denied to couples in civil union states such as Colorado. Colorado will remain at a competitive and moral disadvantage to those states until our ban on same-sex marriage is overturned.

There will be a lot of confusion in the months ahead as couples try to figure out what federal rights apply to their relationships. The answers will be simple in marriage equality states, where all marriages will be treated the same. But will any new federal rights apply to couples joined in a civil union? (For the most part, no.) What about married couples who move to a non-marriage state?

Get used to hearing about the distinction between “place of celebration” laws and “place of domicile” laws. Some federal laws, such as those related to immigration, are based upon the state in which couples were married. Others, such as Social Security survivor benefits, are based upon the state in which the couple currently resides. Married same-sex couples moving to Colorado will have their marriages recognized as civil unions for state purposes, and they will lose some federal rights and keep others depending upon which location the federal law uses.

Many federal laws do not specify which location should be used, so there will be room for administrative action to clarify rules. The ACLU will advocate for “place of celebration” policies as much as possible, so that fewer rights are lost when couples move. The ACLU will also engage in “Know Your Rights” education for couples with civil unions or out-of-state marriages.

But the real solution will be to overturn the marriage ban that puts Colorado couples at a disadvantage. The ACLU will work with partner organizations such as One Colorado to identify the best strategies to accomplish that goal. A lot has changed since 2006, and I doubt the people of this state would pass a discriminatory ban today. However it happens, I am confident that Colorado will find its way to full marriage equality, and the whole nation will not be far behind.

Nathan Woodliff-Stanley is executive director of the American Civil Liberties Union of Colorado, a board member of the Interfaith Alliance of Colorado, and an ordained Unitarian Universalist minister.

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