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News about DOMA, the Defense of Marriage Act

 

An Historic Marriage Equality Anniversary

Thursday, June 26th, 2014

Rainbow Supreme Court

Today is the one year anniversary of the Windsor and Prop 8 decisions from the US Supreme Court, as well as the 11 year anniversary of the Lawrence v. Texas case.

And they were all very close calls, a fact that’s easy to forget now, looking back.

Keen News Service reports:

Kennedy’s words in both Lawrence and Windsor have been repeated in numerous court decisions since. And the powerful influence of words and decisions has almost obscured the fact that they were narrow victories.

In Lawrence, Kennedy wrote for just five of the six justices who considered sodomy laws to be unconstitutional; while Justice Sandra Day O’Connor provided a sixth vote in concurrence with the judgment, she did not join Kennedy’s opinion to the extent that it overruled the 1986 decision in Bowers v. Hardwick (which had upheld state sodomy laws). O’Connor said she would simply strike Texas’ law on equal protection grounds. (“Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”)

In Windsor, Kennedy wrote for just five justices. One of those five, Elena Kagan, had been on the bench for only two and a half years and apparently had to recuse herself from a similar DOMA challenge that had reached the high court sooner because she likely discussed it while serving as Solicitor General. If the court had taken that first case, Gill v. Office of Personnel Management, the court likely would have rendered a tie vote and DOMA would still be in effect in most states.

Over at Time, Stuart Armstrong II looks at the impact the DOMA ruling had on LGBT finances:

The Supreme Court’s ruling last year on the Defense of Marriage Act has had a momentous impact on financial planning for lesbian, gay, bisexual, and transgender couples. But the momentous impact has little to do with the case at issue. The focus of the landmark case, United States v. Windsor, was an estate tax issue. Given that it takes millions of dollars in assets to trigger federal estate taxes, hardly any Americans are subject to them. Yet the decision allowing for federal recognition of same-sex marriages has a major influence on the day-to-day financial lives of LGBT couples — not just the high-net-worth ones — affecting everything from income taxes to Social Security benefits.

And James Esseks at The Advocate looks at Windsor’s other effects:

…with a year’s hindsight, it’s clear that Windsor signaled more than just the end of DOMA, it also propelled us on an accelerated journey toward the freedom to marry nationwide.

In just the last year, Windsor has helped create incredible momentum for the freedom to marry:

– We’ve won six new marriage states since June 2013, bringing us to 19 states plus Washington, D.C., where gay couples can marry.

– Now 44 percent of the country lives in a freedom-to-marry state, up from 18 percent just a year ago.

– Polls show a clear majority nationwide supports marriage for same-sex couples.

– We’ve won 21 court rulings for marriage since Windsor, including two just yesterday (one from a federal appeals court covering Utah and another from a federal trial court in Indiana), and we’ve lost an incredible record on a “culture war” issue in the courts.

– There are now over 80 marriage equality cases pending in state and federal courts across the country, including in every state that doesn’t allow same-sex couples to marry and in seven federal appeals courts.

So happy birthday, US vs. Windsor – and we hope we’ll have a lot more to celebrate when you turn two.

Find more articles and gay wedding resources.

States forge ahead with SCOTUS ruling to allow same-sex marriages

Thursday, December 26th, 2013
Screen Shot 2013-12-26 at 12.01.10 PM

Photo: GAY U.S.A. The Movie www.gayusathemovie.com

Brady McCombs and Mark Sherman of the Associated Press, and writing for The Seattle Times, have provided a composite analysis of how the States have now reinforced the SCOTUS rulings, forging the way to allow same-sex marriages. They have noted that advocates on both sides of the gay-marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of a federal ban on gay marriage would create a pathway for states to act. Stating categorically, “They were right.”

The Article goes on to note:

“In the six months since the decision, the number of states allowing gay marriage has jumped from 12 to 18, a trend that started before the high-court ruling that’s been reinforced since. Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week. Both Utah’s case and another in Nevada will next be heard by federal appeals courts, putting them on the path toward the high court. Ohio’s case, which recognized same-sex death certificates, also will likely be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

It may not be that simple.

The cases on the path to the Supreme Court now differ little from a case that justices refused to hear in June, at the same time they made their landmark ruling on the federal law denying tax, health and other benefits to legally married same-sex couples.

That case, from California, hinged on a constitutional amendment defining marriage as between a man and a woman.

If the justices had acted, it would have struck down gay-marriage prohibitions across the country.

Instead, the justices passed, relying instead on a technical legal argument to resolve the California case and clear the way for same-sex marriage in the state, which resumed at the end of June.

That convinces some legal scholars that the high court won’t take up the issue again so soon. In a way, they’ve already passed the buck to the states, some say, including language in their Defense of Marriage Act ruling saying it relegates same-sex marriages to second-class status, and “humiliates tens of thousands of children now being raised by same-sex couples.”

That language makes it clear state bans are ripe for challenge, said Andrew Koppelman, a professor of law and political science at Northwestern University. Language from both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s biting dissent has appeared prominently in subsequent court challenges and rulings, including in Utah and Ohio. A federal judge in Ohio ordered officials to recognize gay marriages on death certificates.

“The Supreme Court has given them ammunition to go there if that’s where they want to go,” Koppelman said.

READ MORE.

The Lay of the Land Post-Windsor and –Perry

Wednesday, November 13th, 2013

With marriage equality now coming to Illinois and Hawaii, nearly 40% of the country lives in a marriage equality state. But just how federal and state governments will navigate the still-unsettled reality (and consequences) of marriage equality remains an open question.

Although Windsor invalidated Section 3 of DOMA, it left Section 2 in place, which allows states to refuse to recognize same gender marriages performed in other states. Marriages are not judgments or orders, and are therefore not entitled to equality under constitutional principles of full faith and credit among the states. This has the potential to impact benefits, parental rights, divorce, and other issues for same-sex couples depending on where they marry and where they live.

Read the full story on the MEUSA news blog…

MEUSA Thanks the More than One Million LGBT Service Members and Veterans For Their Service

Monday, November 11th, 2013

This Veterans Day, take a moment to thank a veteran for his or her service. Also, take a moment to think of the men and women who are abroad putting their lives at risk so we can rest easy at home. Now, take it further and think about the partners/husbands/wives of those LGBT Servicemembers out there who wait for their loved ones to return. Or the LGBT veteran who walks for the first time into the hospital hand in hand with his or her partner, a silent bundle of nerves waiting to be called out and shot down. Most importantly, thank a veteran. You could be the one person who makes his or her day.

Read the full story on the MEUSA news blog…

USA, New Jersey: How the DOMA Case Brought Marriage Equality to the Garden State

Saturday, September 28th, 2013

DOMA OverThe New Jersey marriage equality case provides important foreshadowing for other cases to come, in part because it relied heavily on the Supreme Court’s decision on the Defense of Marriage Act.

The National Journal reports:

Two court decisions lie at the heart of the case. The first is this summer’s Supreme Court ruling that found the Defense of Marriage Act–which prevented the federal government from extending benefits to same-sex marriages–unconstitutional. The second is Lewis v. Harris, a 2006 decision by New Jersey’s highest court that ruled civil unions must be afforded the same legal rights as other married couples. What both of the decisions have in common is that they ruled same-sex couples were entitled to certain rights and benefits afforded to opposite-sex married couples.

The case, it seems, all comes down to language. Basically, since the federal government extends rights to married same-sex couples the same way New Jersey’s state government extends rights to same-sex couples in civil unions, those unmarried individuals should have the right to marry. Otherwise, New Jersey’s civil union law is blocking citizens from receiving federal benefits.

It seems to me that the same logic applies to every state in the country that has a ban on marriage equality

Find more articles and gay wedding resources in New Jersey.

USA: Businesses Want Clarification On Defense of Marriage Act Ruling

Thursday, August 29th, 2013

DOMA OverA new study has found that the US Supreme Court’s ruling on the Defense of Marriage Act left widespread confusion in the business community.

Pink News reports:

Two-thirds of US employers are in need of clarification and guidance on the impact of a Supreme Court ruling on the Defense of Marriage Act (DOMA) from earlier this year, a new study has found. The survey, conducted by the International Foundation of Employee Benefit Plans, asked employers following the Supreme Court ruling which struck down a key part of DOMA, potentially opening up 1,100 employee benefits to same-sex couples married in states which legally recognise equal marriage.

The study also showed that about a quarter of employers surveyed plan to extend benefits to all married same-sex couples, regardless of which state they live in. But another 40% are waiting for some kind of guidance before taking such a step.

Find more articles and gay wedding resources.

USA: Justice Ginsburg Thinks the Court Struck the Right Balance on Marriage Equality

Saturday, August 24th, 2013

US Supreme Court Justice Ruth Bader GinsburgLiberal Supreme Court Justice Ruth Bader Ginsburg thinks the Supreme Court got it about right with the two marriage equality decisions earlier this year. Bloomberg reports:

Justice Ruth Bader Ginsburg, the U.S. Supreme Court’s foremost champion of civil rights, said the court struck the right balance with two rulings that backed gay marriage without legalizing it across the country. Gay-rights supporters had urged the court to declare a constitutional right for same-sex marriage nationwide. Ginsburg, who has said the court was too bold in the landmark 1973 Roe v. Wade abortion-rights ruling, said in an interview that the court was right to take a more limited approach in the gay marriage decisions. “The court handled both of those cases just the way they should have,” said Ginsburg, who was a leading advocate for women’s rights before she became a judge.

Do you think the court was right to take such an incremental step? Or should they have gone all the way and ruled for marriage equality in every state?

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USA: Ninth Circuit Dismisses Appeal, Lets Stand Federal Benefits Verdict for Lesbian Couple

Thursday, July 25th, 2013

DOMA OverA case brought by a federal employee seeking health benefits for her wife is over. The Advocate reports:

The U.S. Ninth Circuit Court of Appeals dismissed the appeal of a federal district court ruling in the case of Golinski v. U.S. Office of Personnel Management yesterday, citing the recent U.S. Supreme Court ruling which struck down Section 3 of the so-called-Defense of Marriage Act, reports Lambda Legal… “What a wonderful day for Karen, her spouse, Amy Cunninghis, and their family,” Lambda Legal Staff Attorney Tara Borelli said in a statement.

We should see most of the rest of the current batch of DOMA cases wrapping up similarly. Next battle – DOMA’s ban on reciprocity – i.e.: our marriage is no good across state lines.

Find more articles and gay wedding resources in California.

USA: Post DOMA Benefits Landscape Still Fuzzy for Many Same Sex Couples

Tuesday, July 23rd, 2013

DOMA OverAlmost one month after the Supreme Court’s landmark decision to gut DOMA, legal analysts and experts are still trying to make sense as to how it specifically impacts same-sex couples and their benefits. While the decision was explicit in terms of including all “lawful marriages”, the situation remains less-than-clear for those living in what legal scholars refer to as the 36 “mini-DOMA” states, according to an editorial released in yesterday’s Washington Post.

According to Bloomberg, approximately one-third of the roughly 130,000 married same-sex couples live in such states that have laws in place forbidding the practice and/or recognition of same-sex marriage. As WaPo and SCOTUS Blog have already argued, this could certainly prove problematic for federal agencies wishing to determine which couples are “legally married”. Do said agencies use the guidelines laid down by the state of the couple’s residence, or the state that legally married them? WaPo has already pointed out that:

“Each agency has its regulations, and some define marriage based on where a couple resides rather than where the spouses were married — obviously inhospitable to same-sex couples living in the states that don’t recognize their marriages.”

Authored By RJ Aguir – See the Full Story at Towleroad.com

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After the Defense of Marriage Act

Friday, 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?’\0x2009” 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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