States That Don't Recognize Out-Of-State Same-Sex Marriages Present Complications After DOMA

Jul 12, 2013

Marriage equality got a major boost when the U.S. Supreme Court struck down major provisions in the Federal Defense of Marriage Act last month.  But it’s still unclear how married same-sex couples will access benefits if they live in states that don’t recognize their union.

Florida happens to be just such a state, and Governor Rick Scott said the DOMA decision applies to federal law and will not impact state laws. 

“In 2008 Florida voters amended our constitution so that we are a traditional marriage state – marriage is between a man and a woman.  As Governor I will uphold the existing law of the land, and that’s the law of our state,” Scott said.

For supporters of so-called traditional marriage, the Supreme Court’s narrow ruling was a victory.  John Stemberger of the Florida Family Policy Council said states should be allowed to define marriage for themselves.

“Good news is that in Florida, our constitutional amendment which defines marriage still stands, so the court did respect states’ rights and it did not force this issue allowing states to define marriage,” Stemberger said.

But this creates a problem for same-sex couples with out-of-state marriage licenses.  Many federal agencies, including the IRS and the Social Security Administration, look to the state of residence to determine marriage validity. 

But Florida’s constitution doesn’t just limit marriages in the state to heterosexual couples.  The amendment says any same-sex union treated like marriage cannot be recognized within the state. 

Arriane Plasencia, a lawyer with the firm Carlton Fields said, “States are still allowed as a matter of federal law to disallow or not to recognize same-sex marriages performed outside of their state.”

Plasencia said that’s because Section 2 of the Defense of Marriage Act wasn’t argued in the case the Supreme Court just decided.  So even though the Court has ruled all married couples are entitled to federal benefits, states are still allowed to write laws that refuse to recognize same-sex out-of-state marriages. 

Bill Rohrer, another lawyer with Carlton Fields, said a solution may come in the form of new procedures for administering federal benefits.

“It might be something as simple as for purposes of determining whether or not a same-sex couple is validly married, the federal law will refer to the state where the marriage was celebrated,” Rohrer said.

By making this change, states that choose not to recognize a marriage wouldn’t be consulted in the first place.  But Rohrer cautioned that still wouldn’t grant same-sex couples state marriage benefits.  State Rep. Joe Saunders (D-Orlando) said that could drive same-sex couples away from the state.

“We have done nothing at the state level to ensure that gay and lesbian families are recognized are protected, in fact the only laws we really have on the books that acknowledge gay and lesbian families are ones that marginalize them and seek to protect people from them,” Saunders said.

Rohrer and Plasencia both recommend same-sex couples seek counsel for estate planning.  Living wills and a declaration of health care surrogacy will help ensure one same-sex spouse is able to look after the other in the event of an emergency.

This story appears on the weekly news magazine Capital Report.