Lawyers Journal

About 15 years ago, then Massachusetts Bar Association President Marylin A. Beck appointed me to the Ethics Committee, chaired then and now by the estimable and venerable Andrew L. Kaufman, longtime professor at Harvard Law School, first-rate intellect and genuinely good guy. Carol A. G. DiMento, who later became MBA president, had recommended me to Beck. DiMento and Beck thus got me started on my active MBA involvement, for which I thank them. Kaufman has been a great and important mentor to me, whether he realizes it or not. His combined equanimity, intellect, objectivity, wit and energy are a marvel. As chair of the Ethics Committee, he has served the MBA in relative obscurity, overseeing the provision of important advice to confidential inquirers seeking guidance on ethics matters. He is a model for all regarding the essence of professionalism and volunteerism.

Robert L. Holloway Jr. wants to make one thing clear: the success of the initiatives and goals of the Massachusetts Bar Association are not to be credited to a particular president, or even a particular group of officers. They are the opportunity and responsibility of the entire membership and staff of the organization, many of whom work below the surface and out of public view, over a long span of time.

After years in the MBA officers' circle, he spent his presidential term taking up, with the rest of the officer group, three initiatives that had been in the works for some time: membership, education and public relations. Looking back on his presidency, which ends Aug. 31, Holloway and his successor, President-elect Douglas K. Sheff, emphasize that continuity and consensus are key, and that the three initiatives become permanent parts of the MBA organization - not dependent on presidents and other officers who serve in one-year cycles.

The United States Supreme Court held Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, unconstitutional on equal protection grounds. Section 3 of DOMA defined marriage for federal purposes, as between a man and a woman only. Section 2 of DOMA, 28 U.S.C. § 1738C, which was not challenged in Windsor, allows states to refuse to recognize same-sex marriages performed under the laws of other states. Windsor does not affect state laws which currently prohibit same-sex marriage. The resulting revision of federal regulations and laws will have a major impact on the practicing business lawyer whether in-house or at the individual client level. As is often the case with U.S. Supreme Court decisions, more questions seem to have arisen than were answered. This article will provide a 50,000-foot overview of the Windsor decision, highlighting some of the challenges faced by business law practitioners, with a focus on in-house counsel and representing the individual client. It is by no means exhaustive in its review. Careful analysis of state versus federal laws and regulations will be required by those practicing in the business area. As always, consult with qualified counsel for specific advice.

The United States Supreme Court's holding in United States v. Windsor, 570 U.S. ____ (2013) - declaring Section 3 of the so-called Defense of Marriage Act unconstitutional - touched many in Massachusetts, the birthplace of marriage equality in the United States. The case is cause for relief in many respects, but challenges for lawyers and inequities for LGBT clients remain. Family lawyers must be careful and thoughtful in reviewing Windsor and its implications.

In Windsor, the U.S. Supreme Court determined that Section 3 of DOMA was unconstitutional on equal protection and due process grounds. Section 3 prohibited federal recognition of same-sex spouses as spouses under federal law, denying over a thousand federal rights to same-sex couples. (See 1 U.S.C. § 7.) With the decision, married same-sex couples in Massachusetts are now recognized as spouses under federal law. Federal benefits through employment, for example, are now available to same-sex couples without concern over increased taxes on the imputed income. Same-sex divorces will now be simpler and more straightforward because these couples will be treated the same as their different-sex divorcing peers. Same-sex couples may now divide retirement accounts, divide property without concern about the tax ramifications, benefit from the tax advantages of alimony, provide health insurance to former spouses without imputed income and the additional tax burden, and so forth. After a decade of struggling to fashion equitable separation agreements under discriminatory federal law, the divorce landscape is now much simpler and fairer.

Practically speaking, the United States Supreme Court's ruling in United States v. Windsor that the federal Defense of Marriage Act is unconstitutional will have little discernible effect on the practice and enforcement of criminal law in Massachusetts.

This, despite the fact that Justice Anthony M. Kennedy, writing for the 5-4 majority, specifically included this field of law when he stated that DOMA controlled "laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright and veterans' benefits."

In a 5-4 decision authored by Justice Anthony M. Kennedy, the United States Supreme Court determined that Section 3 of the Defense of Marriage Act violated equal protection guaranteed under the Fifth Amendment of the Constitution. Section 3 prohibited any federal benefits for same-sex spouses and defined marriage, for federal purposes, as between a man and a woman. Section 2 allows states not to recognize such same-sex marriages. It was not before the court.

In 1996, when the bill was passed and signed by then U.S. President William J. Clinton, not a single state recognized same-sex marriage. Now 13 states and the District of Columbia recognize it (effective Aug. 1, 2013).

The impact of the United States Supreme Court decision holding that the Defense of Marriage Act is unconstitutional, will be felt in juvenile and child welfare law in several areas where the federal government has impact on the states. This article will address two primary areas, having to do with child welfare and adoption.

Reports issued after DOMA's enactment revealed 1,138 federal laws in which marital status is a factor. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at www.gao.gov/new.items/d04353r.pdf (updating U.S. Gen. Accounting Office, GAO/OGC-97-16 Defense of Marriage Act (1997), available at www.gao.gov/archive/1997/og97016.pdf.) Some of those laws have a direct impact on child welfare and adoption, as the federal government requires the states to implement policies as a condition of federal funding.