Happy Families Now Even More Alike


Since the 2003 ruling in which the Supreme Court struck down sodomy bans, the debate about the place of gays and lesbians in American culture has focused primarily on family matters. In the August 2005 issue of reason, Julian Sanchez looked at the complicated issue of families led by gay couples. The big public battle at the time was whether gays should be allowed to adopt children and whether to recognize nonbiological same-sex parents. As states developed their own policies on how much recognition to give gay relationships, conflicts emerged when families moved from state to state. 

In "All Happy Families," Sanchez noted that "the 1996 Defense of Marriage Act [DOMA] stipulates that 'the United States Constitution shall not be construed to require any state or territory to give effect to any public act, record, or judicial proceeding respecting a relationship between persons of the same sex that is treated as a marriage under the laws of another state or territory.'?" That meant same-sex marriages recognized in one state could be ignored by another. A separate provision of DOMA barred the federal government from recognizing such marriages. DOMA meant legal recognition of spousal relationships and federal benefits connected to the parent-child relationship might not apply, depending on the situation.

Challenges to DOMA's ban on federal recognition began in 2008. This year they landed in the Supreme Court. On the 10th anniversary of the ruling that struck down sodomy laws, the high court ruled by a 5-to-4 vote that the federal government must recognize state-licensed same-sex marriages. 

Justice Anthony Kennedy, the swing vote in the case, wrote the majority opinion, which noted DOMA's devastating impact on families: "Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive."

The Court's ruling applies only to federal recognition of same-sex marriages. A new round of litigation will be necessary to force states to acknowledge marriages recognized by their neighbors.