Wednesday, June 26, 2013


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We have entered a new world. 

This is a world wherein acknowledgement of institutional discrimination against legally married same-sex couples has been made and partially OVERTURNED...

Ironically, a case about estate taxes brought the Feds to their knees in a Supreme Court Decision that will change the landscape of the United States as we know it.  In United States v. Windsor, 570 U.S. ___ (2013), Ms. Windsor, who was legally married to her partner, Ms. Spyer, had to pay significantly more in estate taxes than other heterosexual couples who were married, as Ms. Windsor was not considered a "surviving spouse" and could not take advantage of the marital exemption to the federal estate tax. Ms. Windsor paid the exorbitant estate taxes and then brought suit to challenge the constitutionality of Section Three of DOMA (otherwise known as the Defense of Marriage Act) that excludes a same-sex partner from the definition of spouse and to recover her overpayment to the IRS of over $300,000.00 in estate taxes.

Generally, the laws regarding marriage and domestic relations are reserved to the states and are part of the states' sovereign powers. However, in 1996, when States began thinking about ratifying same-sex marriages, the DOMA was passed, which excluded, federally, same-sex partners from the protections, responsibilities, and benefits of marriage.  In fact, DOMA applies, as the Supreme Court pointed out, " to a class of persons that the laws of New York, and of 11 other States, have sought to protect."  Laws applying to a class of persons, when that class is based upon gender, race, ethnicity, or religion, trigger equal protection problems.

Blog, attorney at law, civil rightsIn a landmark decision, handed down today, the Supreme Court called B.S. on DOMA's Section
Three, based upon provisions of the 5th Amendment to the United States Constitution, providing the Right to Equal Protection under the law.  In fact, the Court stated,


 "The avowed purpose and practical effect of the law [DOMA] here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States ... The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law... DOMA writes inequality into the entire United States Code...  By this dynamic, DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.  This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify."

Clearly, the majority on the Supreme Court has had enough of Section Three of DOMA.  The majority astutely determined that calling out a class of persons, herein same-sex marital partners, was discrimination, plain and simple.  Not only was it discrimination, but it was also federalized discrimination, which is unconstitutional and insupportable.

While the Supreme Court ruled DOMA unconstitutional, the majority's opinion was very pointedly about Section Three of DOMA. Thus, until challenges are made and more information is discovered, it is unclear whether the entire act was declared unconstitutional, or just Section Three of DOMA,  to which the majority referred repeatedly.

The sleeper in DOMA, Section Two, allows States to refuse to recognize same-sex marriages that were performed under the laws of other States.  This also appears, to this attorney and blogger, to have the same problems as Section Three, hereinabove-mentioned.  Furthermore, Section Two would also appear to be in conflict with the Full Faith and Credit Clause otherwise in play between States regarding recognition of laws, etc.

The fall-out from this landmark decision will be far and wide and will have people guessing for quite sometime. The bottom line is, if you or your friends/family are in a same-sex marriage and seek to ascertain your rights with regard to divorce, custody, support, taxes, estate taxes, etc., you should see an attorney who is aware of these issues and can assist you in navigating these uncharted but wonderful waters.

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

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