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Wednesday, July 24, 2013

The State of Marriage Equality After the Windsor and Perry Cases

by Mona Smith, GSBA Board Member and Public Affairs Chair

Do you know where you were at 7:00 a.m. on June 26, 2013?  If you are like so many others, you were glued to a television, radio or the internet awaiting the Supreme Court to announce its decisions in two marriage equality cases. 

The Supreme Court punted in the Hollingsworth v. Perry case, deciding that the private party intervener had no standing to appeal the trial court’s decision finding Proposition 8 unconstitutional. The result: Marriages for same-sex couples have resumed in California. The “no standing” ruling left undecided the issue whether same-sex couples have a fundamental constitutional right to marriage. 

Under DOMA, the federal government has treated state sanctioned same-sex marriages as lesser than heterosexual ones. The Supreme Court repealed Section 3 of DOMA as unconstitutional in the Windsor v. United States case. The result: Legally married same-sex couples residing in states (currently 13 states and the District of Columbia -- 1/3 of our nation’s population) that recognize the marriages of same-sex couples are entitled to all 1,138 federal spousal rights and responsibilities. These benefits affect taxes, social security, retirement pensions, military spousal benefits, immigration, healthcare plans, COBRA benefits, family medical leave and more. 

In striking down Section 3, Justice Kennedy stated, “DOMA writes inequality into the entire United States Code.” He continued, “No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”

The entirety of DOMA, however, is not dead.  Neither Perry nor Windsor legalizes marriage or provides rights for all same-sex couples.  Some degree of uncertainty exists as to which rights and responsibilities will apply to same-sex couples legally married but living in states that do not recognize their marriages, because of the inconsistency of federal statutes and regulations and that Section 2 of DOMA remains alive.  Section 2 leaves it up to states whether to recognize marriages between same-sex couples. The IRS and other federal agencies apply marriage benefits based on the state of residency rather than the state in which a couple marries. The Social Security Administration similarly provides spousal benefits based on the state in which a couple is domiciled.  In contrast, the Department of Homeland Security provides immigration spousal benefits based on the state in which a couple marries or state of celebration.  Immediately after the Windsor decision, the government stopped deportations and started granting permanent residency of foreign national same-sex spouses.

Secretary of Defense Hagel announced that same-sex military personnel and their spouses will be entitled to federal spousal rights and responsibilities regardless of the location of their deployment. The practice of the Office of Personnel Management entitles legally married federal employees to federal spousal benefits based on their federal employment and not on their state of residence. 

This leaves a lot of inconsistency in the extension of federal benefits to same-sex married couples living in or moving to a state not recognizing their marriage, other than federal or military personnel (but whether military same-sex families will receive benefits if they leave the military base is unclear). Since we are a transient society with couples moving from state to state or companies relocating their employees, benefits and protections could change as quickly as it takes to cross state lines. Confusion and chaos will undoubtedly ensue.  Companies could still be forced to discriminate and treat their same-sex employees differently and the administrative cost of keeping track of which of the 1138 spousal benefits apply to a specific employee will be costly and time consuming.

Even though a same-sex couple may have some or all of the federal spousal benefits, they can face other problems in states that do not recognize their marriage. Second parent adoptions remain necessary to recognize and protect the parentage of non-biological parents.  Powers of attorney for financial, legal and health care provide certainty for spouses to make decisions for each other in states not recognizing their marriages.

The looming question now is how can the government deliver federal benefits to legally married same-sex couples residing in states with DOMA statutes or constitutional amendments. Some advocate for President Obama to issue an executive order applying federal benefits based on the place of marriage.  This could be a quick fix, but runs the risk of being only a temporary solution.  Congress could repeal what remains of DOMA.  Senators Feinstein and Murray have reintroduced the Respect for Marriage Act.  Statutory and regulatory definitions of “spouse” could be revised and federal forms will need to be modified. 

Retroactivity is possible for some rights such as widowed spousal pensions and social security survivor benefits.  Tax returns could be amended for joint filings. In Washington State, the effective date of marriage is the registration date of the registered domestic partnership.

It’s unlikely that Congress will act swiftly to end DOMA or pass legislation making marriage between same-sex persons a fundamental constitutional right.  On the “what’s next” horizon, the state-by-state battle for marriage equality will continue. We can anticipate more states passing marriage equality laws and new lawsuits to legalize marriage, end federal DOMA, extend federal benefits to all legally married persons and make marriage a fundamental federal constitutional for same-sex couples.

For those same-sex couples legally married or contemplating marriage, consult your GSBA tax and legal professionals as to how the Windsor decision could impact your tax, family and estate planning.  Lambda Legal together with other organizations has prepared a fact sheet series, “After DOMA What It Means For You.” Jill Mullins of McKinley Irvin has also created a Comprehensive Legal Guide to Same-Sex Marriage, Parenting and Divorce. GSBA will continue to provide its members with updated information as it becomes available.

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