After the Defense of Marriage Act

Written by scott on July 19th, 2013

DOMA OverSome more follow-ups for you in the wake of the repeal of DOMA section 3.

First off, Scottie Thompson at Equality on Trial has a nice wrap-up of the remaining DOMA cases, including:

Golinski v. Office of Personnel Management: this was the first case in which the district court had applied a heightened level of judicial scrutiny to laws that classify on the basis of sexual orientation to strike down Section 3 of DOMA. It was appealed to the Ninth Circuit Court of Appeals, and then stayed pending the outcome of Windsor. Last Thursday, the court asked the parties to write a letter addressing Windsor.

Over at The Washington Blade, Robert Turner notes that the sky hasn’t fallen in a post-DOMA (section 3) world:

It’s been a couple of weeks since the Supreme Court ruled that not only has the Defense of Marriage Act (DOMA) been declared unconstitutional, but also that the defendants in California’s Proposition 8 case had no legal standing to present their arguments. Rain still comes from the clouds, the sun still lights up the sky and days still go by. With the repeal of Section 3 of DOMA, the court opens the path for the federal government to recognize same-sex marriages in the states where there is marriage equality. In doing so, it allows for the application and eligibility of more than 1,000 benefits and responsibilities that are laid out in the federal code, including health benefits, long-term care, Family and Medical Leave, and federal retirement benefits, among others. It also subjects them to the same responsibilities of straight marriages, such as anti-nepotism rules and financial disclosure requirements for federal employees.

And now that the Federal Government is starting to recognize marriages for same sex couples, the IRS has a problem… whether or not to recognize the valid marriages of same sex couples who live in non marriage equality states. Business Week reports:

To avoid confusion, a single nationwide rule makes the most sense, says Patricia Cain, a tax law professor at Santa Clara University in California. “The IRS has the power to construe the Internal Revenue Code,” she says. “So for them it’s, ‘What does the word spouse mean?’\0×2009″ President Obama has weighed in, saying it’s his “personal belief” that same-sex couples should get the same federal benefits as married couples regardless of where they live. He’s asked federal agencies to research legal issues that might stand in the way. Such a ruling, though, could cause headaches for the IRS, which until now has typically followed states’ definitions of marriage, says David Herzig, a tax law professor at Valparaiso University. “You may solve this problem,” he says, “but you may open up another.”

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