It is expected that the US Supreme Court will be accepting cases challenging the constitutionality of the Defense of Marriage Act (DOMA). DOMA was enacted by the US Congress in 1996 and essentially defines marriage as a legal union between one man and one woman. It makes clear that gay or lesbian unions are not legally recognizable under the law of the land. Specifically, section 3 of DOMA states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Because of the limit on the definition of “marriage” under DOMA, thousands of other federal laws are affected. By way of example, same-sex couples cannot file joint federal tax returns, the surviving member of a same-sex union cannot collect Social Security survivor benefits, and federal employees are unable to share their health insurance and certain other medical benefits with same-sex partners.
DOMA has far-reaching implications for family law attorneys. For instance, if one partner in a lesbian couple gives birth, and both women act as a parent raising the child, what happens if the couple separates? Under current law, the non-biological parent has no legal rights to that child at all. Whereas the courts are charged to determine what is in a child’s best interest when a couple stops living together (whether “married” or not), the issue cannot even be raised in the example I am providing. The biological mother may be the proverbial “train wreck,” on drugs, chronically unemployed and/or abusive to the child, and the non-biological mother may be the model parent. It simply doesn’t matter, because there was no legal “marriage,” and therefore, no divorce to give a court jurisdiction to adjudicate the child’s best interests in awarding custody. The bio-mom can take the child and never let her former partner see the child again! This is but one small example of the far-reaching consequences of outlawing same-gender unions.
Regardless of one’s personal beliefs on gay marriage, it is clear that “family” no longer means a mother, a father and 2.5 children (I never understood that .5 part!). Most of the cases coming through my office involve step-family, half-sibling and other permutations of human relationships, each of which adds texture a meaning to the term “American family life.” I personally believe that if gays are going to live together in what they consider to be marital relationships, our laws need to reflect the needs of a changing society. This protects everyone, from same-gender partners/spouses to the innocent children whose best interests should be protected regardless of parental life style choices. What do you think?