What just happened re: DOMA

[Triana]

For more and a map detailing the different possible scenarios, click here: http://www.newyorker.com/sandbox/news/marriage.html

[morningfog]

1. It also opens the door to some future litigation.

A same sex couple in a state that does not recognize marriage equality will be denied fed benefits while their neighbors in the next state do.

[yardwork]

2. Really? I understand it differently.

Maybe I'm wrong. I think it means that a married couple can't be denied federal benefits anywhere, even if their state doesn't recognize their marriage.

[The Link]

3. That is what I am hoping it means, but I am not sure.

[morningfog]

8. That is what it means, you are correct. The challenge I see coming

will be that a couple living in a state with no right to marry, but would otherwise marry, will not be able to access federal benefits. Since there will now be a class of similarly situated same sex couples in other states, or even who have moved to that state, who are entitled to such federal benefits, a disparate impact will result.

Today, the Supreme Court left open the question of whether laws prohibiting same sex marriage are constitutional. I think when they are required to answer it, they will find such laws unconstitutional.

[Ms. Toad]

11. I agree - they certainly laid the groundwork

but did not decide it today.

The most successful challenge would come from a couple who currently lives in New York (and has federal benefits) and then moves to Ohio (which does not recognize its marriage). The deprivation of rights already granted, merely because of a move from one state to another, is certainly the kind of inequitable burden described in the decision (but limited to couples within the same state who face similar unfair discrepancies).

It would be harder to argue that a state could not choose to grant (or not grant) same gender marriages - the decision was premised on respecting state's rights to do just that. But it is a much harder case to sustain constitutionally when the couple already has federal rights, which moving within the United States randomly rescinds.

[morningfog]

13. The federal benefits will travel with the legally married couples.

A NY couple that moves to Ohio will retain their benefits. They would file state taxes individually, but federal taxes jointly. THe reverse of how couples have had to do in Massachusetts until today.

I don't think that is even a live issue. Today's case answered that question. The next question will be whether anti-marriage laws are constitutional. Under today's newly articulated standard, they will fail.

[Lex]

15. Yes. This is how I see it too. nt

[Ms. Toad]

16. That is not what the decision said.

The decision was limited to federal benefits based on your marriage being legally recognized in the state in which you live.

It was an odd decision because it did not address the traditional basis for determining whether a marriage was legally cognizable - its legality when and where it was created (in Canada at a time when it was not legally recognized in New York). Traditionally, recognition of a marriage depends only on its legality at creation. In order to decide this case, the court looked at a different time - the status of the marriage in the state of residence (normally an irrelevant factor) and the different treatment that marriage received from all other marriages (a determination for all those other marriages which was made at their creation, not their current residence).

That complexity is why I thought they would punt today - if they had legal integrity, they could not have decided in Edie Windsor's favor without deciding state and interstate reciprocity was mandatory (had Edie Windsor been married to a man that is why her marriage would have been legally recognized in New York). But they didn't.

I agree it is falling quickly, but there will need to be individual cases extending federal benefits to all couples married anywhere - as well as forcing interstate and international reciprocity. Once that happens, what a particular state decides about the marriages it will create will no longer matter, just as it no longer matters that some places prohibit marriage between first cousins.

[morningfog]

18. I don't read it that narrowly. Maybe you can point me to a quote.

It goes on at length about legally entered into marriages and that the federal government cannot discriminate against those couple.

You may be right, it may require a next-step challenge on the couple that moves and is then denied, but that will be an easy case (setting aside the time of bringing such case).

[Ms. Toad]

41. Here's a quick cut - dont' have time to pare it down

Here are snippets - starting around page 19

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “‘{D}iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans , 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman , 277 U. S. 32, 37–38 (1928)).

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

. . .

The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.

. . .

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.

. . .

this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognit
ion.

. . .

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.

. . .

The federal statute is invalid, for 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. By seeking to displace this protection and treating those
persons as living in marriages less respected than others,

And - unfortunately - that means those of us in marriages the State deems unlike - or has chosen not to protect - are not instantaneously granted recognition of our marriages. This decision, at least by the language of the decision merely says it was unconstitutional for the Federal Government via DOMA tot take away what the state has chosen to give.

[morningfog]

43. All the language goes to any marriage

legally entered into. As long as the state in which the marriage occurred recognized it, the federal benefits will travel with that couple. None of the language limits fed rights to equality state residency, just to place of marriage. Iowa is about to become the Las Vegas of the plains.

[Ms. Toad]

44. That is really not clear.

And precisely why I thought they would dodge the question.

Under traditional analysis, you are correct. Marriage is determined by the legality when and where it was entered into.

But the case explicitly hinged on New York law which is the resident state, not the marrying state - and, most significantly, a state in which the marriage was NOT recognized at the time it was created, but which later recognized it (and under traditional analysis, New York's later actions would have zero impact on whether Edie Windsor's marriage was legally recognized by the Federal Government or not).

It is not at all clear that if New York had never recognized same gender marriage that Edie Windsor would have won.

So, go through the analysis in the brief (or even just the excerpts above) and substitute a resident state (say Ohio - which refuses to recognize same gender marriages) for New York with a couple who goes to Iowa (the equivalent of Canada) to marry. Canada plays NO role in the Court analysis - so it is not clear that Iowa would play any role in a similar analysis for a resident state like Ohio which has chosen NOT to grant recognition to same gender marriage. Because half of the analysis was all about New York's (the resident state) right to choose - and Ohio has made a different choice.

[morningfog]

48. Here are a few points from NYT:

The ruling makes clear that married gay couples living in states that recognize their unions will immediately gain access to more than 1,000 federal benefits, like Social Security and family leave rights. Less certain is how couples living in the remaining 37 states will fare.

The murkiness exists because federal agencies generally defer to the states to determine a couple’s marital status. Some agencies look to the laws in the state in which a couple now live, for instance, while others look to those in the state in which the couple were married.

“Unless the administration changes its practices and rules — and in a couple of cases, unless the law changes — then couples residing in a nonmarriage-equality state may not be recognized for some federal programs,” said Brian Moulton, legal director at the Human Rights Campaign. “Now that we have an opinion out, we will be anxiously awaiting what the administration will say about this and urging them to ensure that all married couples, regardless of where they live, are fully recognized.”

White House officials said that they had already begun analyzing the hundreds of relevant laws and statutes at issue and were working with the Justice Department to make benefits available as swiftly as possible.

But even if the administration were to apply the ruling broadly, gay married couples would still not be on entirely even ground with their heterosexual peers. Until other states approve the unions, couples will still need to travel to one of 13 states or the District of Columbia to get married. And they will still need to deal with a patchwork of state laws that could make it difficult to get a divorce or establish legal ties to their children.

http://www.nytimes.com/2013/06/27/your-money/how-the-supreme-court-ruling-will-affect-same-sex-spouses.html?pagewanted=all&_r=0

So, it seems that it will, until the Administration clarifies, depend on the federal agency. Those agencies that look to the state where they were married will carry across state lines. Those that look to residency will need to be changed by the executive or possibly by Congress.

[Ms. Toad]

49. The distinction between residence and marriage is really a distinction without a difference

The marriage laws have been worked out so that (same gender marriage notwithstanding), the determining factor was the state (or country) in which the couple was married - and the laws that existed in that country when the couple was married.

Taxes (mentioned in that, or another NYT article) are a prime example as one of the federal collections of laws which **supposedly** depend on residency at the time of the interaction with the law.

But the first thing to understand is that all states are obligated to recognize the marriages of all other states and countries from their inception as long as they were legal in the marrying location (again, same gender marriages and a very limited other subset of marriages against which the state has created a legislative history of strong public policy against - plural marriage is the only one I can think of at the moment).

So - had I been married to a man, my Canadian marriage would instantly have been recognized in my residence state. So ceremony and current residence recognition are synonymous for mixed gender couples.

Another example - common law marriages. Even though Ohio no longer recognizes common law marriages, it did once. Those pre-existing marriages are legally recognized in Ohio, even though at the time that couple files their federal tax return it would not be a legally recognizable relationship. But because it was at its creation, the recognition doesn't vanish. And to stretch this example a bit further - say New York doesn't recognize common law marriages. If a couple married at common law moves to New York, it doesn't matter whether they recognize such marriages or not - they are obligated to recognize this couple's marriage based on the fact that it was a legally recognizable marriages during the period of time in Ohio when the marriage was created. So when that couple files their tax return in a non-common law marriage state, what controls is not (as the New York Times article suggested) the laws of the state where they now live - but the legality of that marriage when and where it was created plus the constitutionally obligated reciprocity which requires New York to recognize what it would not otherwise create - and what can no longer be created in Ohio.

Perhaps you are getting the picture. But one more I find particularly fun. My high school girlfriend - whose sex assigned at birth is male, at the time she was still legally a male, married a woman. She has now transitioned and is legally female, without being required to divorce (which is sometimes required). The IRS has issued a ruling that she (and others similarly situated) may file joint federal tax returns because legal recognition of a marriage is based on whether the marriage was legal when and where it was entered into - not on anything (other than divorce) which has happened since then. (Sorry - I couldn't immediately find a link to the letter ruling - but I have seen it.)

So - her same gender marriage is recognized based on the fact that it was a legally recognized marriage at its inception. NOT - as the NYT suggests tax decisions are based - on the residence state's definition of marriage.

So - like I said, despite the hemming and hawing, aside from this decision (which is why I thought they would punt) whether a marriage is recognized by the Federal Government - because of constitutional mandates for reciprocity - really is based on the laws of the ceremonial location - not the residence.

And - that reality makes basing the Windsor decision on New York law in the condition it existed some time after Windsor's marriage was created legal gibberish. Nice that gibberish falls in our direction sometimes - but it will make for some really ugly and messy litigation to sort it all out because it isn't consistent with the rest of marriage law.

People trying to apply the decision to a couple living in Ohio, for example, running off to Iowa to elope - applying traditional analysis - would immediately obtain Federal benefits because Iowa gets to set its own rules and the marriage created in Iowa is legally recognized. But stick Iowa in place of Canada in the decision, and Ohio in place of New York in the decision, and combine that with the very strong states-get-to-decide-who-to-recognize-as-married theme, and you get a very different result. The residence state (think New York in the opinion) in this case chooses NOT to recognize marriage. And Iowa? Well, you see how much play Canada got in the decision (none). It was New York's laws - at the time Edie Windsor's spouse died - which were the determining factor. Not that they had a legally valid marriage from Canada (Iowa).

[jberryhill]

24. That's not entirely clear

I think we all need to read it more carefully to get to the bottom of whether, as suggested above, one would then be "married" for federal purposes, but not for state purposes.

It may be an open question, though.

[morningfog]

38. SCOTUSBlog supports my reading of it:

"With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments."

http://www.scotusblog.com/2013/06/opinions-recap-giant-step-for-gay-marriage/

[Ms. Toad]

40. We'll see.

Since federal recognition has always followed state definition (read the opinion), when a state chooses not to recognize a marriage (and the court was very clear that this is a state's right) - there is no marriage for the Federal government to recognize and grant benefits to.

What is not clear is whether a marriage once recognized at the federal level vanishes when the couple later moves. I would have said it was a given that they did not vanish (the IRS' position on transgender couples who become a same sex couple post transition - for example - who are allowed to continue to file as a married couple notwithstanding DOMA).

But this decision also inadvertently changes when a marriage comes into existence. That moment has always been at the moment the couple says "I do" (signs the certificate, or whatever formalities the state requires). Nothing that happens after that point matters.

When Edie Windsor got married in Canada, that moment did not create a legally cognizable marriage in New York which - at that time - prohibited same gender marriages. So something later changed that status - but traditional analysis does not permit considering anything after that magic moment in Canada.

So - frankly - it is a big mess and will take quite some time to sort out.

I hope you and SCOTUSBlog are correct - but that is not my reading.

[bunnies]

19. Not yet. Unfortunately.

This was just spelled out on MSNBC. Federal benefits are only available in states that recognize the marriages.

[morningfog]

20. Hmm.

"The class to which DOMA directs its restrictions and
restraints are those persons who are joined in same-sex
marriages made lawful by the State. DOMA singles out a
class of persons deemed by a State entitled to recognition
and protection to enhance their own liberty. It imposes a
disability on the class by refusing to acknowledge a status
the State finds to be dignified and proper. DOMA in
-
structs all federal officials, and indeed all persons with
whom same-sex couples interact, including their own
children, that their marriage is less worthy than the mar
-
riages of others. The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State..."

The language is certainly broad enough to make that an incredibly easy step. Since DOMA is unconstitutional now, the question is, will the federal government deny benefits to a couple that moves? The ball is in their court, I guess. If the feds continue to give benefits there will be nothing to challenge. But, I don't see what would require the feds to cut off such benefits just because someone moves.

[jberryhill]

26. The problem is the first mention of "a State"

Maybe they left the question open.

[morningfog]

31. Yeah, I think it is open.

A state recognizes a marriage is not necessarily "the state in which you reside."

The question though, is what will the federal government and the various agencies do when a legally recognized married couple moves to another state and seeks their benefits. With DOMA gone, I don't see where the feds would be required to deny the benefits. I also don't see how they would be empowered to deny such benefits with DOMA gone.

[jberryhill]

34. Well...

...the more interesting issue involves state-administered federal programs. Oh my.

But I'm going to do more reading, less talking.

[morningfog]

39. Looks like the all states will be on the hook for federal benefits any legally recognized marriages.

of any legally recognized marriages.

"With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments."

http://www.scotusblog.com/2013/06/opinions-recap-giant-step-for-gay-marriage/

[bunnies]

28. I know. Seems contradictory.

And Ill admit, Im confused. MSNBC guy said something about how it'll be up to something Obama does or writes. If thats the case, I'd expect that even *if* the ruling doesnt mean federal benefits for all after today, Obama will clarify the issue. Hopefully its something he can do with an executive order?

Seems like equality for all shouldnt be so damned nuanced.

[morningfog]

36. I think that the federal benefits will travel with the couples.

From SCOTUSBlog:

"With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments."

http://www.scotusblog.com/2013/06/opinions-recap-giant-step-for-gay-marriage/

That's how I read it, too.

[bunnies]

37. Good.

One step closer to full equality.

[jberryhill]

29. Two scenarios

You mention a couple "that moves". That's one set of facts where the federal government might, hypothetically, then confront the question of whether they cut off rights because the couple moved to another state. That would seem to be applying a "state residence" test to receipt of a federal benefit to which the couple was otherwise entitled. That *seems* to be an easy question to deal with.

The more interesting question is a couple which lives in a non-ssm state, but marries out of state. I've never lived in Nevada, but that's where I got married, for example, as many people do.

Do you think the answers in those cases would be the same, or different?

[morningfog]

32. I think, ultimately, the answers would be the same.

The court will have to address the tourism marriage question. But, the dominoes are falling.

[yardwork]

23. I agree that this will open avenues for lawsuits

It will take a long time, though. The SC has made it clear that states' rights is their goal.

[justiceischeap]

4. Exactly

As I understand it, one of the reasons for striking down DOMA was because of the equal protection clause. Meaning, I, as a lesbian, don't have equal protection under the law in regards to marriage. If I get married in Maryland but my neighbors in say VA or DE can't legally marry in their states, then where is that equal protection?

I see two things happening... LGBT people moving to states that allow marriage equality and law suits. Because you can guarantee that my neighbors in VA and DE are not being treated fairly under the law.

[jberryhill]

6. This happens all the time with first cousins

[Ms. Toad]

14. That is not analagous.

If you live in Mississippi, and run to Texas to marry your cousin, then return home you are still entitled to live happily ever after (with a brief trip out of state for the marriage). The same is not the case with me - I was married in Canada (but could just as easily have been married in Iowa). I don't get to return home to Ohio and live happily ever after (at least if happily ever after includes legal recognition of my marriage).

So yes, there are different laws throughout the country about marriage. BUT whatever those laws are, as long as you comply with the laws of the marrying state every other state recognizes that marriage. That is not true for same gender couples.

[jberryhill]

17. ...which is why the next challenge will have to address Section 2

[Ms. Toad]

42. We have a winner here! n/t

[Chan790]

5. The expected test case...

is that someone married in one state will sue upon moving to a state with a legislated ban on the ground that the states cannot abridge a federally-granted right.

What the Constitution has given...the state legislature can't take away.

[jberryhill]

7. What is the "federally granted right" in that sentence?

[morningfog]

9. Federal benefits to same sex couples.

While the Court has left the definition of marriage to the states, when forced to answer whether a definition based on discrimination against gay couples is constitutional, the Court will have to say it is not.

The same rational and analysis will apply. The federal government cannot be party to such discrimination. By denying federal benefits to couples who but-for discriminatory laws, would be married and qualify, they are participating in the discrimination.

[jberryhill]

10. I'll have to read it more closely

But the ruling does not say that a state's denial of recognition of same sex marriages is discriminatory.

The ruling DOES say that if a state deems a marriage lawful, then the federal government cannot apply a discriminatory test to not recognize a marriage deemed lawful by the state.

[morningfog]

12. No, it does not say state denial of same sex marriages is discriminatory.

My point is that is the only logical conclusion when the Court does address that question. Today's opinion made clear that the test for such laws would require finding them unconstitutional. The court said it will use a "careful consideration" to look for animus in "unusually discriminatory" statutes. There is no way the anti-marriage equality amendments and statutes will pass that test, because DOMA's just failed.

The next step will be the Court finding such laws unconstitutional, an easy step.

[jberryhill]

21. That is in relation, though to "a class the state has chosen to protect"

"The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.

By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages."


What was "unusual" about the federal law in question is that it applied a discriminatory criterion to refuse recognition to a class of marriages which certain states had chosen to protect. Obviously, I haven't read every passage, so if you could point to where it suggests what test would be applied to underlying state laws, I'd appreciate it. I can't see why they'd bother, given that what was under consideration was a federal law under a 5th amd. analysis, and not a state law under a 14th amd. analysis. I'd be happy to be wrong there.

[truegrit44]

22. Excuse my ignorance........

I am not understanding this: If a gay couple is married in a state where it is legal and then move to a state where it is not, has anything changed for them? I know they wouldn't be recognized by the new state as far as taxes etc. but would they have any more rights than they do now?

[yardwork]

25. They will now have federal rights

[jberryhill]

30. Was that question actually answered here?

[yardwork]

45. Looks like I was wrong.

Those of us living in states that ban equal marriage get nothing. No federal rights.

I feel depressed.

[truegrit44]

33. So only as far as say taxes?

I can see it for federal income tax and related things, but they still wouldn't have rights as for example in a hospital situation or upon death, or inheritance?

Sorry for being so dense

[yardwork]

46. I was wrong.

This ruling doesn't give any rights to those of us living in the dozens of states that ban equal marriage.

[truegrit44]

35. Ok, guess I should have read more posts

So, it seems that they only have federal rights if they stay in one of the states that allow it. That sucks, they are still confined to those states. I can only hope that this will be changed soon also.

[yardwork]

47. Yeah. I'm still a non-person.

[Hekate]

27. Kick! Rec! Love!