• 31
  • August
    2011

While many New Yorkers saw the passage of the Marriage Equality Act as a victory for same-sex couples, others noted that marriage equality for same-sex couples will only be obtained with the repeal of the federal Defense of Marriage Act (DOMA).

Under DOMA, states have the right to not recognize gay marriage and same-sex unions as a valid marriage. Strictly defined, marriage is the "legal union between one man and one woman." Given that federal law trumps state law, when states like New York enact their own laws on same-sex marriage, uncertainty remains for the couples when it comes to how their marriage is recognized by states that have not legalized same-sex marriage.

According to an article in the New York Law Journal, DOMA puts the other 49 states in the union into 3 categories. The first category consists of five states and the District of Columbia, all of which recognize same-sex marriage. The second category has 40 states, in which "mini-DOMA" laws exist, basically denying marriage recognition for same-sex couples married in states that have legalized same-sex marriage. The last category includes the remaining four states, such as Maryland, which recognize out-of-state same-sex marriages to a varying degree.

States refusing to recognize marriage laws of other states is nothing new -- all states have not always recognized the validity of interracial marriages or marriage among family members. This adds additional challenges to what family law court decisions are enforceable in other states. One example of this could be seen if a same-sex couple in New York divorces and seeks to enforce a child support judgment in Virginia. Since Virginia is a "mini-DOMA" state, it would not recognize the New York Court divorce decision, so the party seeking enforcement would not be successful.

These challenges are just a few of those that gay couples in New York will continue to face. While the passage of the state act recognizing gay marriage was a victory, the battle for equal marriage rights still continues.

Source: Creative Parenting Agreements Still Needed With Same-Sex Marriage