On June 26, 2013, the United States
Supreme Court invalidated the Defense of Marriage Act in United
States v. Windsor. The decision struck down a key section of DOMA,
which defined marriage as between a man and a woman for the purpose
of federal law.
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.
Challenges remain
Section 2 of DOMA remains intact, meaning that sister states do
not have to recognize same-sex marriage. More than 30 states have
either legislative bans or constitutional bans against same-sex
marriage (or both). For family lawyers, that means we need to
educate ourselves about the law of all the states to ensure our
clients will be protected wherever they travel or reside. Married
couples who have moved to a non-recognition state may be unable to
divorce. In drafting separation and premarital agreements, language
should be incorporated to ensure that the agreement is recognized
as a contract in all jurisdictions even if the marriage is not
recognized. It is critical for couples to complete co-parent
adoptions of their children. A married couple who gives birth in
Massachusetts will both appear on their child's birth certificate,
but if they do not adopt and subsequently move to a non-recognition
state, only the birth mother will be recognized as the legal
parent. A judicial decree of adoption will be recognized
nationwide, but parentage flowing from marriage will not. Couples
should also be advised to revisit their estate planning documents
and consider revisions to ensure federal protections available to
married persons.
Questions abound
Will retroactive relief be available? Should couples seek to amend
federal tax returns? Will widows/widowers now qualify for certain
Social Security benefits previously unavailable? Married same-sex
couples who live in non-recognition states should be aware that
while certain federal benefits are based on the marriage being
valid where celebrated, others are based on the marriage being
valid where the individual resides. Because civil unions and
registered domestic partnerships confer a legal spousal status not
recognized as a "marriage" per se for federal purposes - federal
benefits will likely be unavailable to these couples. Fortunately,
in Massachusetts (and in other recognition states), a civil union
or registered domestic partnership will be treated as a marriage
for all state purposes. There is no doubt that - as a result of
these many serious and unanswered questions - we can expect
numerous legal challenges across the country, not only to the
possible denial of federal benefits to legally married same-sex
couples but also to the many state bans on same-sex marriage
itself.
Lawyers must continue to educate the public about the rights and
responsibilities of marriage, the implications of Windsor
and the patchwork of protections and pockets of discrimination that
still exist. Practitioners and clients must consult with legal, tax
and financial professionals with specific expertise in LGBTQ
issues. The Windsor case is an exciting and substantial
step forward, but it cannot be an invitation to complacency. It is
wise to remain vigilant in following developments for same-sex
clients, couples and families, to ensure that same-sex couples and
their children are fully protected.