The Supreme Court’s decision to strike down part of the defence of Marriage Act means the U.S. government will recognise state-sanctioned gay marriages, but it won’t necessarily make it easier for American gays to divorce.
The high court struck down one part of DOMA — section 3, which effectively deprived gay married couples of the federal benefits straight marrieds get.
Section 2 of DOMA — which says states don’t have to recognise other states’ gay marriages — is still technically alive, and that makes divorce harder to come by for some married gays.
Say a gay couple in Georgia goes to Massachusetts for the weekend to get married. That gay couple can’t go back to Massachusetts to end their marriage because the state has residency requirements for divorces. And Georgia might not let them get a divorce because the state doesn’t recognise their gay marriage in the first place.
“As a result of Section 2 of DOMA, states which do not recognise same-sex marriages may refuse to grant divorces to same-sex spouses who were married in another state and subsequently moved to the non-recognising state,” divorce lawyer Jerome Wisselman recently wrote.
This scenario played out in Texas, where the state’s attorney general intervened to stop two lesbians from getting divorced because of the Lone Star State’s ban on gay marriage.
In Ohio last year, a judge blocked a divorce by two lesbians who didn’t have a lawyer. A male couple who did have a lawyer managed to obtain a divorce in the Buckeye State that year, but they had to deal with the stress of the Ohio Campaign to Protect Marriage’s (ironic) petition to keep them from dissolving their marriage.
“It gives wedlock a whole new meaning,” Susan Sommer, director of constitutional litigation for Lambda Legal, told New York Magazine earlier this year. “They’re trapped.”
While the Supreme Court’s decision doesn’t explicitly require states to recognise other states’ marriages, it does provide some “new hope” for gay couples seeking divorce in states that don’t acknowledge they’re married, The New York Times reported.
The language of Justice Anthony Kennedy’s opinion — which said DOMA violated gays’ right to equal protection under the law — is broad enough to help gays challenge states’ same-sex marriage bans, experts told The Times. If these bans are lifted, states might be more inclined to grant gay divorces.
“I think that there’s some reason to be optimistic that we might be able to see the end of these statewide marriage bans,” family lawyer Elizabeth F. Schwartz told The Times, “which would have lots of positive effects, including being able to free people from relationships they no longer want to be in.”
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