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DOMA Section Declared Unconstitutional – But What Are The Ramifications?

June 28, 2013


The Supreme Court struck down Section 3 of the Defense of Marriage Act on June 26, 2013.  The Act (“DOMA”) defined “marriage” as solely between one man and one woman for the purpose of over 1,000 federal laws and regulations.  The federal estate and gift tax marital deduction are two of such laws.  Edith Windsor and Thea Spyer were New York residents who were legally married in Canada.  When Thea died and left her entire estate to Edith, Edith was required to pay the IRS over $350,000 in estate taxes despite the fact that the couple’s home state of New York fully recognized their same-sex marriage.  If Thea had been a man named Theo there would have been no federal estate tax payable, because of the “unlimited marital deduction,” meaning anything passing to a “surviving spouse” would qualify for this deduction and not be subject to the federal estate tax.  The IRS refused to issue a refund because under DOMA, Edith was not technically a “surviving spouse.”  Her next stop was the federal court system.

The Supreme Court’s 5-4 ruling was based on the traditional federalist notion that states have always been allowed to craft their own definitions of domestic relationships.  Section 3 of DOMA, according to the Court, was an unconstitutional attempt by the federal government to displace some states’ recognition of same-sex marriages.  The Court held that the federal government’s treatment of legally married, same-sex couples as “less worthy” of rights than their heterosexual counterparts violates the Equal Protection Clause of the Fifth Amendment of the U.S. Constitution.  Now, federal law must treat legally married same-sex couples the same as other legally married couples.  In Edith’s case, this means that she gets her IRS estate tax refund.

The Court also issued a ruling on Prop 8, California’s law banning same-sex marriage.  The Court dismissed the case for lack of standing, vacating and remanding the decision of the Ninth Circuit. This ruling will likely have the effect of legalizing same-sex marriage in California, but might not have other far-reaching implications.

The legal implications of DOMA’s partial invalidation, however, are still murky and vary according to state.  New York fully recognized same-sex marriage upon passage of the Marriage Equality Act in 2011, which means that any married same-sex couples who reside in New York will now have equal recognition under federal laws previously restricted by DOMA.  New Jersey remains in the middle: the state has a civil union statute that offers same-sex couples many of the legal protections of marriage while declining to permit them to marry.  Governor Christie is now advocating a ballot referendum on the issue, after vetoing a bill legalizing same-sex marriage.  Democratic leaders in New Jersey are still hoping to override Christie’s veto, or, alternatively, to bring new lawsuits in the state challenging the civil union statute as unconstitutional.  Pennsylvania currently has a statute defining marriage as between a man and a woman and disregarding same-sex marriages performed elsewhere.  Also, Pennsylvania does not provide for civil unions.  There is, however, no state constitutional amendment on the subject, making the future of Pennsylvania law uncertain and open to political activism on both sides of the issue.

It is not clear how Pennsylvania, New Jersey and every other state that has not legalized same-sex marriage will react to the invalidation of DOMA.  Same-sex couples who legally marry in New York or another state and then move to Pennsylvania or New Jersey may be able to qualify for certain federal benefits, depending on which state’s laws each particular federal law makes reference to in determining when individuals are legally married.  Additionally, there are many federal laws that do not specify which state to consider in making that determination.  Conflict of law issues also exist for states that have constitutional amendments or statutes outlawing same-sex marriage (sometimes known as “mini DOMAs”).  Traditionally, states have generally recognized marriages taking place in other states as valid despite any legal discrepancies, but differences in political landscapes and the myriad of different laws makes this more complicated for same-sex marriage.  Subsequent regulations and court decisions will have to clarify the manner in which federal laws concerning marriage and the legal treatment of spouses will now be applied to the various states.