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DOMA Is Dead, But Litigation Lives On

The federal Defense of Marriage Act is dead, and gay couples in California will soon be able to wed again. But there is a lot of legal ground still to cover before every American couple can marry for love and trust that their union will be universally honored.

Yesterday, in United States v. Windsor, the Supreme Court struck down DOMA on the narrow basis that the definition and determination of marriage is a state responsibility, and that the federal law was motivated by bias against a class of citizens that a state (New York, in this case) was trying to protect.

This leaves us still to wonder whether individual states may deny marriage to same-sex couples, as well as whether they can refuse to recognize marriages performed in other jurisdictions. Though yesterday’s outcome was about what I (and others) expected, it sets us up for years of legislative challenges and legal battles nationwide.

The Court’s concurrent action in Hollingsworth v. Perry will restore same-sex marriage in California, where it was halted in 2008 after voters amended the state constitution through Proposition 8. This brings the number of states that allow gay marriage up to 13, along with the District of Columbia.

Sadly, these decisions were not the sweeping pronouncements that defined some of the landmark decisions of yesteryear, such as 1967’s Loving v. Virginia, which struck down state bans on interracial marriage. In each case yesterday, the vote was just 5-4, and the resulting holding was almost as narrow as its margin.

In Hollingsworth, the Supreme Court actually found that it did not have jurisdiction over the case, and that neither did the Ninth U.S. Circuit Court of Appeals, which had affirmed District Judge Vaughn Walker’s ruling that Proposition 8 was unconstitutional. Writing for the majority, Chief Justice John Roberts declared that the measure’s backers lacked standing to pursue any appeal of Walker’s decision. State officials who might have appealed had refused to do so.

Walker ruled that Proposition 8 infringed the constitutional rights of gay couples and lacked any rational basis. Other federal courts that have considered same-sex marriage in cases involving DOMA have reached similar conclusions. But in the absence of any appellate guidance via Hollingsworth, we will have to wait to see what happens when advocates of same-sex marriage challenge the bans that remain on the books in more than 30 states.

The Windsor decision provides little immediate help in those future cases, because the decision was specifically confined to couples that are considered married under state law. Windsor will nevertheless create some valuable protection, and much-desired recognition, for same-sex couples in certain places. Yet, for other couples, it also ensures a long period of uncertainty.

First, the good news: If you are legally married in your state of residence, the federal government must now recognize your marriage. This will bring you a variety of benefits you were previously denied. Henceforth you may file joint income tax returns, for example. You also may be entitled to tax refunds or other benefits that you were unable to claim in the past. But there are limitations on the time period in which you can bring claims for such benefits - so talk to a financial, tax or legal adviser as soon as you can. The Windsor decision may also offer you new options for health benefits or estate planning, which are also worth discussing with a professional. It is also likely that binational couples residing in states with same-sex marriage will now have equal treatment under federal immigration law.

Now the bad news: Many couples’ situations are much less clear than that of Edith Windsor, who brought the litigation the Supreme Court decided yesterday. Windsor and her partner married legally in Canada, and were both New York residents. (Windsor’s partner, Thea Clara Spyer, died in 2009; the case involves federal estate tax.) Much of the Supreme Court’s opinion hinged on New York’s recognition of same-sex marriage.

We do not yet know what yesterday’s decisions will mean for people in more complex situations, including the following:

  • You reside in a state that explicitly prohibits same-sex marriage but get married in a state that permits it. Must the federal government recognize your marriage? Must your state?
  • You reside and get married in a state that permits gay couples to wed, and then later move to a state that does not. Does the federal government stop recognizing your marriage? (I think this is unlikely, since DOMA is now struck down, but this is not explicit.) Does your new state have to recognize your marriage?
  • You reside and get married in a state that permits same-sex marriage, but your spouse has business or property in a state that does not. Your partner dies without a will. You claim benefits as a surviving spouse, but the other state does not recognize your marriage.
  • Any of the above situations apply, and you currently reside in a state that has no legislation on same-sex marriage at all, or one which permits civil unions but not marriage for gay couples.

Yesterday’s rulings did not alter my belief that gay marriage is a fundamental right and, as a practical matter, inevitable in all jurisdictions. The patchwork that the Supreme Court has left in place is simply unworkable. The movement of public opinion toward accepting marriage equality is also rendering it pointless.

We are heading in the right direction. We just have not yet arrived at our destination.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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