Defense of Marriage Act Struck Down
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Democrat
Colorado Springs, CO
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Democrat
Colorado Springs, CO
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Democrat
Colorado Springs, CO
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bUU ---
I agree to a point. But people do move between states, and so many states laws are linked in some form with federal laws. Colorado is one where, as I previously stated, that our state income tax forms are linked to the adjusted gross income on the federal form. I'm sure there must be other examples.
So as I understand you, a legally married gay couple from California moving to Colorado during the year would no longer have their marriage recognized under federal law? And they would then lose any Social Security and Medicare benefits that might otherwise be previously afforded to a spouse as a result of being a married couple. For example, my wife gets 50 percent of my Social Security benefits, but suppose we were a same sex couple and received those benefits while living in California. Would those benefits be denied to my "partner" if we moved to Colorado.
It's not that the state has to formally recognize the marriage...just make a few common sense accommodations in their laws.
I suppose these types of situations will indeed be clarified by states in follow-up legislation and lawsuits, but in the meantime there will be lots of confusion.
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Democrat
Colorado Springs, CO
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I understand the Social Security and Medicare laws as my wife and I are both drawing benefits. But her benefits are only granted because of her marriage to me...and I was wondering if that would still be the case if we were same sex "partners" married in a state like California, but our marriage was not recognized as such by our current state of residence.
You've answered that point by your first statement. Same sex couples can move to a state that recognizes same sex marriage, establish residency, and then move back to their former state and keep all the federal benefits that were granted to them by their marriage in the "temporary residency state."
It still leaves in question such things as taxes where the couple can file a joint return on their federal return but not their state form.
Looking further down the road, I would expect that states that allow same sex marriage can expect an influx of people from outside the state to move to that state temporarily to marry, but also satisfying that state's residency requirements. This would be done only to solidify their federal benefits. Once established they could live in any state as a married couple in the eyes of the federal government.
Correct?
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Schmidt Wrote:It still leaves in question such things as taxes where the couple can file a joint return on their federal return but not their state form. Yes, but again I believe that'll found to be a failure in the definition of the state law, which the state will be obligated to remedy in a fair and just manner. I doubt any state will fail to do something reasonable (i.e., splitting a federal AGI in half, in the scenario outlined earlier) unless they deliberately want to bring the matter to the SCOTUS quickly, a tactic that the SCOTUS generally does not like.
Schmidt Wrote:Looking further down the road, I would expect that states that allow same sex marriage can expect an influx of people from outside the state to move to that state temporarily to marry, but also satisfying that state's residency requirements. The "technical" term is "same-sex marriage tourism". Evidently Iowa and Minnesota will compete with each other to service the mid-west.
Schmidt Wrote:This would be done only to solidify their federal benefits. Once established they could live in any state as a married couple in the eyes of the federal government. Correct? That would be my understanding. Note that there are a lot of barriers. Some may contest the residency laws of states that sanction same-sex marriage. Cases could get down to the nitty-gritty of whether a change in residency is valid, based on where the person was truly domiciled at the time. Lots of room there for arguments. I do know, however, that some states explicitly welcome same-sex marriages sanctioned by other states - Rhode Island, for example, won't sanction same-sex marriages themselves, but grant recognition to same-sex marriages sanctioned by other states, as a matter of law.
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Democrat
Colorado Springs, CO
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There has been quite some confusion about exactly what the Supreme Court did re: DOMA, particularly with headlines trumpeting that "DOMA IS DEAD!"
It isn't. Not entirely.
The Supreme Court had before it Section 3 of the Act, declared that to be unconstitutional, and affirmed the judgement below, which struck down Section 3. It is true that the FEDERAL GOVERNMENT can no longer define "marriage" and "spouse" to exclude same-sex marriages under federal laws. BUT, DOMA's Secton 2 was NOT struck down, only Section 3 was. Section 2, which survives, concerns powers of the STATES. It directs that no state may recognize any other state's same-sex marriage as valid and was not even discussed in the Windsor decision, which concentrated solely on the effect of the federal government's powers under DOMA. Section 2 imposes limits on the power of states.
However, Section 2 is, and always has been, unconstitutional on its face. The full faith and credit clause of the Constitution, contained in Article IV, Section 1, requires that all states recognize the laws and acts of any one of them, which has always included reciprocal recognition of marriage. Section 2 of DOMA is unconstitutional because Congress does not have the power to tell states to ignore the Constitution. Rather, the Constitution ALWAYS trumps Congress.
So even now, a same-sex couple living in a state that does not have a same-sex marriage law can zip over to a state that does, get married, and come home again. In theory, that marriage is then recognized as legal in all 50 states under the full faith and credit clause of the Constitution. But of course if any state is stupid enough to dig in and not recognize the validity of such a marriage, this exact issue of STATE powers then will be litigaged and also declared unconstitutional.
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Boopsie2008 Wrote: There has been quite some confusion about exactly what the Supreme Court did re: DOMA, particularly with headlines trumpeting that "DOMA IS DEAD!"
It isn't. Not entirely.
The Supreme Court had before it Section 3 of the Act, declared that to be unconstitutional, and affirmed the judgement below, which struck down Section 3. It is true that the FEDERAL GOVERNMENT can no longer define "marriage" and "spouse" to exclude same-sex marriages under federal laws. BUT, DOMA's Secton 2 was NOT struck down, only Section 3 was. Section 2, which survives, concerns powers of the STATES. It directs that no state may recognize any other state's same-sex marriage as valid and was not even discussed in the Windsor decision, which concentrated solely on the effect of the federal government's powers under DOMA. Section 2 imposes limits on the power of states.
However, Section 2 is, and always has been, unconstitutional on its face. The full faith and credit clause of the Constitution, contained in Article IV, Section 1, requires that all states recognize the laws and acts of any one of them, which has always included reciprocal recognition of marriage. Section 2 of DOMA is unconstitutional because Congress does not have the power to tell states to ignore the Constitution. Rather, the Constitution ALWAYS trumps Congress.
So even now, a same-sex couple living in a state that does not have a same-sex marriage law can zip over to a state that does, get married, and come home again. In theory, that marriage is then recognized as legal in all 50 states under the full faith and credit clause of the Constitution. But of course if any state is stupid enough to dig in and not recognize the validity of such a marriage, this exact issue of STATE powers then will be litigaged and also declared unconstitutional. You are correct in the fact that states can still do whatever they want with regards to what constitutes a marriage, but striking down the provision that explicitly states the Federal Government looks at marriage between a man and a woman is still a seismic ruling. The Court explicitly stated that the Federal Government can not write any law that defines marriage between a man and a woman. That is good news to me.
With regards to the greater issue of the states, I truly believe that states opposed to gay marriage will eventually give up. It may take decades (unless the court steps in and rules on this once and for all), but states will eventually realize that it's much more of a headache to continue to fight a lost cause than just capitulate and accept that our gay citizens have just as many rights as every other citizen. The arc of history is long and dirty sometimes, but it always rights itself.
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jaredsxtn said:
In a 5-4 decision, the Supreme Court struck down the Defense of Marriage Act. Justice Anthony Kennedy wrote the wide ranging opinion that has real consequences for the rights of gays and lesbians in America. For the first time in our country, the Supreme Court declared that our gay and lesbian citizens finally have equal protection under the law. Thoughts on today's opinion?
http://www.huffingtonpost.com/2013/06/26/supreme-court-doma-decision_n_3454811....
No, it wasn't struck down. The Federal Rules of Civil Procedure limit courts to the issues before them, and the appeal was on Section 3 of DOMA only, which had to do with the power and actions of the federal government. At the end of the majority's opinion, the language got pretty broad and said several times that "DOMA" was unconstitutional or that "the statute" was unconstitutional, which is why people are getting confused. But SCOTUS affirmed the judgment below, which was a decision on Section 3 of DOMA only, not the entire law. And Justice Roberts, in his dissent, attempted to clarify that the issue of the constitutionality of the ENTIRE statue was not before the Court and had not been decided in Windsor.
So what's left of DOMA? Everything else, particularly Section 2. Section 2 has to do with the powers and actions of STATE governments. Section 2 orders states not to recognize same-sex marriages peformed in other states. THAT section blatantly violates the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution, and the Constitution always controls. So any state stupid or stubborn enough to NOT recognize as valid a same-sex marriage that was legally performed in another state risks getting its butt handed to it in court. They will all lose.
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Democrat
Colorado Springs, CO
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New York Times, June 28, 2013: After Rulings, Same-Sex Couples Grapple With Diverging State Laws
The New York Times covers several personal stories of same sex couples trying to live in more than one state where one recognizes same sex marriage and the other doesn't. Quoting the NYT:
"They are among thousands of legally married same-sex couples, wed in one state but living in another, caught in a confusing web of laws and regulations. It is a predicament the Obama administration is only beginning to grapple with: how to extend federal rights and benefits to same-sex couples when states, not the federal government, dictate who is married."
Although the circumstances vary, taxes are a big concern for one couple: a psychology professor at the University of Utah, and his spouse, a stay-at-home father. The IRS will determine if they are allowed to file jointly and claim the marriage deduction. But according to the NYT article, no matter what the agency decides, they must still file separately in Utah.
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