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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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After DOMA

Thursday, 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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