The Impact of the Supreme Court’s Big Decisions

Yesterday the United States Supreme Court removed the most important barrier to marriage equality in this country: invalidating that section of the Defense of Marriage Act which prevented the federal government from recognizing valid same-sex marriages.  In a sweeping decision that honored the liberty and equal protection rights of lesbians and gay men, the Court ruled that when a couple has a valid state marriage, the federal government must extend all of its benefits to that couple.  For many couples the federal benefits are the most important aspects of being married – including the immigration protections for bi-national couples, the Social Security benefits upon divorce or death, and the federal tax exemptions afforded to married spouses.  This ruling also clears the way for same-sex couples to transfer assets tax-free upon marriage or divorce, including retirement accounts, and provides insurance and other benefits for the spouses of federal employees.  It’s a momentous change for our community, extending the legitimacy, protection and respect from the federal government that we have long deserved.  And perhaps on a most symbolic level, it removes the scourge of a bigoted law passed in 1996, without having to endure a congressional repeal fight.  

The Court also rejected the appeal of the decision invalidating Proposition 8, which banned same-sex couples from marrying in California.  While the Court dodged a substantive ruling and relied on the appellant’s lack of legal standing to toss out the appeal, the end result is that marriages will resume in California within a month or so.  

There are still two important areas of uncertainty for many couples, however.  There are tens of thousands of couples in a marriage-equivalent partnership, either domestic partnership or civil union, in eight states, and we don’t know which (if any) of the federal benefits will be extended to those couples. Each federal benefit has its own legal framework, and it may take several years to work out these details.  If having a federal benefits is crucial for you, it may be advisable to get married, even if you are already state-registered.  That way you don’t have to worry about being a test case!  

The other area of great uncertainty involves couples that have a valid marriage, but live in a state that doesn’t recognize their marriage.  The Court’s decision on DOMA only dealt with the situation where the couple’s marriage was recognized by their home state, and it didn’t address the fate of couples living in non-recognition states.  Most federal laws look to the state of residence, not where the marriage was entered into.  Thus, if you live in a non-recognition state you will need to inquire as to the particular rules applicable for the benefit you are seeking.  If receiving the benefit is crucial and you don’t want to wait out the legal fight that will ensue over this issue, you may need to relocate to a recognition state.

One hopes that the strong language of the Court’s decision on the DOMA appeal, as well as the emerging social acceptance of marriage for same-sex couples, will lead to the repeal or invalidation of the DOMA laws in existence in more than 30 states.   This will eliminate the problems that exist for couples in those states, and will ensure marriage equality for all couples, wherever they reside.

One last word — remember that the right to marry is not the duty to marry.  Each couple needs to make their own decisions about whether marriage is right for them, legally, financially, and emotionally.  Marriage includes significant financial obligations, for shared debts, shared assets, and possible spousal support upon dissolution.  It also requires a judicial dissolution if things don’t work out, which can be difficult and expensive.  We all should celebrate the legal and political victories of this wonderful day – but don’t let the euphoria obscure the more complicated personal questions about what is best for you and your partner!

Proposition 8 at the Supreme Court

Today’s hearing at the United States Supreme Court on the validity of Proposition 8 was quite fascinating both from a substantive and historic perspective.    Substantively, the key issues were standing, and the breadth of the claims made by the parties.  The standing issue focuses on whether the proponents of the anti-gay-marriage initiative have the right to bring this appeal to the court, where the State of California officials refused to do so.  Most of the justices seemed genuinely critical of extending appeal rights to the proponents, given that they do not truly represent the state’s interest.  There was discussion of the various options the state might have, including naming an independent party to challenge the lower court’s ruling, but this didn’t make much sense to the other justices.

On the merits, the discussion mostly focused on whether this could really be a California-onlly ruling – on the grounds that once the State Supreme Court had extended marriage rights to same-sex couples, it was wrong for the voters to take those rights away – or whether they needed to rule on the broad right of same-sex couples to marry everywhere.  It seemed absurd to some of the justices, and rightly so, that states that offered no rights (neither domestic partnership or some kind of constitutional protection) would be left alone, while those states that had gone most of the way to protect same-sex couples, such as California, would be more heavily scrutinized.

From a historical perspective, what is most important was listening to the complexity of the arguments, the sincerity of the claims and responses, and the realities of same-sex couples being discussed at such a high level.  Even the proponents of Proposition 8 did not really argue against same-sex couples having marital rights; rather, they emphasized their assertion that it would be premature for the courts to intervene, preferring instead to let the political process work this out.

But perhaps most surprising was the comment by Justice Kennedy, asking whether it was possibly wrong for the court to have taken on this case in the first place.  Were his suggestion to gather support, the Court could simply say “sorry, never mind” and let the 9th Circuit’s positive ruling stand.  Should this be the outcome – or perhaps more likely, a refusal to rule on the merits based upon the standing question – marriages would be allowed once again in California, leaving the bigger constitutional questions unanswered for years to come.

Today’s arguments on Proposition 8

Today’s arguments on Proposition 8

Here is an excellent analysis by Nancy Polikoff — complete with insightful arguments about the “what’s good for the children’ arguments raised at the hearing today.