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DOMA Likely Heads Back to US Supreme Court for Decision on Same Sex Marriage Bans

Authored by Jordan Trager

Section 2 of DOMA, the remaining part of DOMA that survived after the U.S. v. Windsor decision striking down Section 3 of DOMA and conferring equal rights to same sex marriages under Federal law, will now likely return to the US Supreme Court to determine the constitutionality of state bans on same sex marriage.

Section 2 of DOMA still permits individual states to deprive same sex couples the right to marry. Additionally, it grants these states the ability to deny recognition of same sex marriages in other states where it is legal, including the multitude of legal rights and privileges conferred by marriage, as well as the ability to deny same sex divorces.

Thus far, the bans on same sex marriage have been declared unconstitutional in 32 states. Most recently, however, a decision from the 6 th Circuit Court (the appellate court for Michigan, Ohio, Kentucky and Tennessee) became the first Circuit Court to uphold the bans of those four states, reversing the lower court rulings of those states who ruled that the bans were unconstitutional.

It is this recent appellate decision that will likely force the matter to be finally heard by the US Supreme Court. Previously, the Supreme Court was reluctant to take on the issue directly, instead, taking a “wait and see” approach and hoping that the matter would be resolved by the lower courts. However, it now seems that the Court has little choice but to decide on the matter, having their hand forced by the 6 th Circuit.

Based on this recent development, it seems inevitable that the US Supreme Court will strike down the still surviving part of DOMA as well as the remaining same sex marriage bans, which will ultimately lead to the right of same sex couples to marry in all 50 states.