Defense of Marriage Act (DOMA) Found Unconstitutional By 5-4

Over 1,000 federal laws are affected by marital or spousal status. Estate and Elder Care attorneys are regularly asked questions about a person or a couple’s rights regarding Social Security benefits, housing, taxes, health care, domestic support, bankruptcy, Medicaid, and VA benefits. The advice by counsel usually depends, and may differ, on whether the client is married or single.

On June 26, 2013, the United States Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) violates the guarantee of equal protection as applied to the Federal Government through the Fifth Amendment of our Constitution. Specifically, DOMA defined marriage as that between one man and one woman, and defined spouse as a marriage between people of opposite sex. However, the definition as detailed in DOMA did not restrict individual states from permitting same sex marriages or civil unions.

This, herein, lies the problem. States can permit or deny marriage to same sex couples. But, when a state decides to allow same sex marriage, DOMA then prohibited those couples from enjoying the same federal benefits as other married couples within that state. The case that led to the Supreme Court case was about a lesbian couple that had been together since 1963. They got married in Canada in 2007, which the state of New York recognized as a valid marriage. When one of them died in 2009, her estate incurred an estate tax liability of over $300,000 because she and her wife could not exercise their rights under the marital deductions afforded to other married individuals.

The ruling of the Supreme Court mandates that when a state recognizes the marriage of two people of the same sex, the federal government must as well, affording all the same government benefits to the spouse. One of the complicating factors going forward will be the fact that some federal laws respect the state where the marriage occurred, while other federal laws respect the state where the married couple lives. For example, the Veterans Administration will consider the marriage valid if the state where the marriage occurred recognizes it as valid. Thus, if my partner and I got married in New York, where marriages are valid, and then moved to Georgia, where same sex marriages are not valid, my spouse should be able to receive Veterans Benefits. However, because Georgia does not recognize same sex marriages, my spouse would still not realize any housing, inheritance, or tax benefits due to our status as residents of Georgia.

Moreover, we must be aware that although the Supreme Court determined that Section 3 of DOMA is unconstitutional, it did not make a ruling as to Section 2 of DOMA. Section 2 allows states to refuse to recognize same sex marriages performed under the laws of other states. Until this provision is challenged and ruled upon by the Supreme Court, one state can continue to deny marital rights even when the couple received a valid marriage in another state.

This affects so many Americans, to include me personally. My partner and I have been together for 16 years and had a commitment ceremony in Georgia 10 years ago. In Georgia, the ceremony means nothing, legally. I was ecstatic to hear the Court’s ruling. Given Jennifer and I already have plans of spending our 10 year anniversary in New York in July this year, I immediately began planning for us to get married, legally, in New York while we are there. But, then I thought, will it have any bearing whatsoever? Not in Georgia. But, since I am a veteran, Jennifer may receive VA benefits someday. Also, like the plaintiff in United States v. Windsor, Jennifer and I may be a good “facts” case to challenge the Georgia laws, when the climate is right. For three years now, Jennifer has been a stay at home mother while I work to support us and our three year old twins. For income tax purposes, it is generally better to file as married when there is a large disparity between the two household incomes. We don’t currently get to take advantage of that. I could go on and on about the current and potential disparities the law creates due to the discriminatory differences between married couples and those not permitted to get married.

Nonetheless, JUNE 26, 2013 is a day to be remembered in history for equality. As lawyers, be prepared to answer, in your state, how the repeal of Section 3 of DOMA benefits your clients, or doesn’t. Also, you can expect Lawyers with Purpose to include these topics of discussion in our future training events.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder, Lawyers with Purpose, LLC, Veteran of the U.S.A.F. and author of 47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About, and co-author of Getting to Baby: Creating Your Family Faster, Easier and Less Expensive through Fertility, Adoption, or Surrogacy.