After DOMA

Written by scott on July 18th, 2013

DOMA OverA couple follow-up stories on DOMA and what comes next. First of, the House GOP has to decide if it will stand in the way of married same sex service members receiving equal benefits. reports:

The House GOP faces a decision on Thursday and must answer whether it will continue to defend laws limiting veterans benefits to heterosexual married couples, Buzzfeed reports:

“We’re reviewing the impact of the Supreme Court’s decision, and don’t have any announcement to make at this time,” House Speaker John Boehner’s spokesman, Michael Steel, told BuzzFeed on Wednesday when asked if the defense of the veterans’ statutes would continue. The day after the Supreme Court ruled in Edie Windsor’s challenge to section 3 of DOMA that the federal definition of marriage that excluded gay couples in DOMA is unconstitutional, Judge Richard Stearns asked the parties in another lawsuit, filed in federal court in Massachusetts and addressing the rights of service members and veterans and their spouses, to give “any reasons why judgment should not enter for plaintiffs in this case.”

Also at, Ari Ezra Waldman looks at Kennedy’s decision in the case:

Kennedy never suggested that DOMA’s federalism problem was the source of its unconstitutionality. Nor did he ever suggest that federalism issues were irrelevant. Instead, he argued that the enormity of DOMA’s federal overreach was a cue, a hint that something fishy is going on. Because Congress went out of its way to invade state prerogatives and because it did so to place a burden on the very class that certain states had already decided to honor, Congress’s audacity was suspicious. For Kennedy, DOMA’s federalism overreach was a symptom of some disease that required further investigation. Like stomach pains, a headache, and a persistent low-grade fever: a physician does not look at those three symptoms and immediately treat for cancer or HIV or Crohn’s Disease. Instead, she sees these symptoms as cues to do more tests and perhaps determine that a common virus is the culprit.

And finally, Jamie Rubenstein at Dot429 Magazine looks at the uncertainty left in the wake of the decisions on DOMA and Prop 8. One issue:

“The question I am anticipating from clients will be ‘should we amend our prior federal tax filings?’ and this question will have to wait for guidance from the IRS,” he said. “I would expect that the IRS would allow those who were married to file amended returns from the year they were legally married including years that would have expired under statute of limitations if a protective claim for refund was filed for those years (2009 & before).” The question will be, he continued, “is whether the IRS will require married couples to go back and file as MFJ (or MFS) even if doing so would cause them to recognize an increased income tax. If they do so, then I would expect them to waive any penalty or interest since the original filings were prepared in accordance with the law at the time.”

A lot of these issues will take some time and effort to work out.

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1 Comments so far ↓

  1. Ronald Gurney says:

    By framing his opinion around the equal protection clause of the 5th Amendment instead of federalism principles, Justice Kennedy telegraphed to the states that future cases challenging state laws or state constitutional prohibitions could be struck down for the same cause.

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