On June 26, 2013, the Supreme Court handed down two historic decisions related to gay marriage in the cases of U.S. v. Windsor and Hollingsworth v. Perry. The effect of these decisions was to remove the long discriminatory policy of the federal government by deciding Section 3 of DOMA was unconstitutional, thereby requiring the federal government to recognize (for federal rights and benefits) lawful same sex marriages. It “punted” on the question of whether everyone in America has a fundamental right to be married and – set the stage for future litigation on a variety of issues.
U.S. v. Windsor
Edith Windsor and Thea Spyer were legally married in Canada and resided in New York during a time when, although same-sex marriage was not performed in the state, New York recognized other states’ and countries’ lawfully performed same-sex marriages. When Mrs. Spyer passed in 2009 after a long battle with MS (having been cared for by her wife for many years), leaving everything to Mrs. Windsor, there was a federal estate tax bill due of $363,000 due mostly to the appreciation of wealth on their real property. Mrs. Windsor paid the bill and sued for a refund, as there would have been no bill if their marriage was recognized federally. Ultimately, the issue was whether the definition of “marriage” for federal purposes in Section 3 of DOMA as “between one man and one woman” was unconstitutional.
In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA to be unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment”. This decision was decided on substantive due process and equal protection grounds, meaning that the court found same-sex couples had the same right to marry as heterosexual couples, and that marriage is a certain fundamental right to which people of the United States are entitled. There were also hints of federalism in the case decision – that is, that DOMA infringed on what has traditionally been a state right to regulate marriage.
The Windsor case, although a victory for same-sex couples, was limited in scope. In the final paragraph of the opinion, the court stated that “this opinion and its holding are confined to those lawful marriages.” This seems to suggest that state sovereignty will still play a vital role in deciding whether or not a same-sex couple is lawfully married. The holding also does not address other legal same sex relationships such as domestic partnerships or civil unions. Furthermore, it does not offer any guidance on how each of the federal benefits awarded to married couples will be practically administered. We await guidance from all federal agencies – and are monitoring these issues closely.
Hollingsworth v. Perry
In this case, the California electorate enacted Proposition 8 (a “Mini-DOMA”) defining marriage as between one man and one woman for all state law purposes by amending its State constitution, after the California Supreme Court ruled that same-sex couples had a constitutional right to marry. This case was brought by interested (unmarried) couples in California to challenge the constitutionality of the ballot initiative, Proposition 8. Federal District Court Judge Walker ruled in favor of the plaintiff same-sex couples and enjoined the California Governor and Secretary of State from implementing ballot initiative. State officials chose not to appeal the decision and a Citizen’s Committee, who had brought a ballot initiative, intervened to appeal and lost that decision at 9th Circuit. Ultimately, the issue in this case became whether there is a constitutional right under the Equal Protection Clause of the U.S. Constitution for all same sex couples to have the right to marry.
In a 5–4 decision, the Supreme Court found Citizen’s Ballot Committee lacked standing to bring the case, therefore deciding the case on a procedural issue and leaving for another day the underlying question of whether the U.S. Constitution provides protection or a right for all same sex couples to marry. We believe that case may still come before the U.S. Supreme Court someday. Until then, it is clear that the issue will be decided on a state-by-state basis. As a result, California started issuing marriage licenses to same-sex couples on June 28, 2013 after the U.S. 9th Circuit Court of Appeals lifted stay of injunction on District Court’s order.
Where Do We Go From Here?
The two recent Supreme Court decisions, especially the decision in U.S. v. Windsor, took great steps towards marriage equality, and are victories to be celebrated. However, these decisions left many questions unanswered, and a country divided between “recognition” states and “non-recognition” states. Furthermore, there is very little guidance on how and when federal rights and benefits fit into this ever-increasingly complex patchwork of states, all of which have different laws on same-sex marriage. Currently, 13 states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington, Delaware, Minnesota, Rhode Island, and California) and the District of Columbia allow same-sex marriage. Certain states recognize (or are silent about) out-of-state same sex marriage; some have legislation pending; and 34 states still specifically prohibit it. The law on same-sex marriage among the state changes frequently.
Navigating the impact of U.S. v. Windsor and Hollingsworth v. Perry is complex. These decisions have given rise to many new issues which are challenging for many same-sex couples. We at Squillace & Associates, P.C. pay careful attention to these legal, tax and financial planning issues for same sex couples as these changes occur. For more information about these decisions and how they can impact your life, contact us today by phone at (617) 716-0300 or by email at firstname.lastname@example.org.
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