Modern Marriage: DOMA Elimination Raises Many Questions


Daylin Leach officiates the marriage between Sarah and Marcia Martinez-Helfman at the Talamore Golf Club in Ambler, Pennsylvania.

— by Kenneth R. Myers, Esq.

The elimination of the Defense of Marriage Act (DOMA) and the parallel provision on the Marriage Law in Pennsylvania expand gay rights and bestow important benefits on GLBTQ communities. These include the ceremonial and symbolic element of traditional marriage, and the reduction or elimination of economic discrimination in favor of traditional marriage that continues to exist in some public laws and programs.  

But in addition, this line of cases has broadened the circumstances in which discrimination will be inferred in facially “neutral” governmental action, and has broadened the application of the doctrine of equal protection of the laws, all to the good.  

More after the jump.
Family law, the body of common law principles and statutes controlling marriage, adoption, divorce, support and custody issues, has been a subject of state law. Moreover, the states have been permitted to experiment and apply highly individual approaches in this area.

Until late in the last century, battles over divorce laws arose primarily in state legislatures. For decades, trips to Reno or Mexico had been common parts of a divorce “package.” These days, lawyers fight cases over the question of jurisdiction: If one of two married people travels to a place far from the marital home, is the divorce decree obtained there really binding?

The questions of how marriages formed, on the other hand, had received much less attention. Now with the advent of gay marriage, inevitable adjustments will be made in related norms and practices. Any assumptions about relationships will be revisited.

The traditional polite seating at the meal table — boy, girl, boy, girl — is surely adaptable. Other institutions will take longer to adapt.

As a formal matter, the two paths to marriage — a civil or a religious ceremony — will remain unchanged. Nonetheless, organized religions will face pressure to decide whether they too will broaden their viewpoint and grant sacramental support to gay marriage.

This revolution is surely going to pour over into heterosexual families and relationships. When a marriage — or union — breaks up, many assumptions about custody and support will no longer seem applicable.

Who is responsible for bringing up a baby? The traditional assumption that there will be a breadwinner, and that this role will survive separation and divorce, will seem antiquated. Why should the breadwinner, or the homemaker before divorce continue in that role afterward? If those roles are purely personal elections, need they be permanently binding?