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DOMA Question for the Lawyers
Reality-based commentary on politics.
I don’t know the answer, and I’m not sure anyone does — it’s uncharted territory, AFAIK. I’ll ask around.
I came across this excellent legal explanation of the issue. I use to believe your view, but based on that link, I think we were both wrong.
that article is interesting, but not addressing the issue i am. remember, there are 2 parts to doma (not counting the title). one part says that no state is required to recognize the s-s marriages from another state. that is what your article is talking about.
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p>the other part of doma says that the federal government doesn’t have to recognize s-s marriages. unless you believe that the government of the state you are living in must recognize your marriage for the federal government to also do so, repeal of doma should allow access to federal marriage-related laws to anyone anywhere in the country.
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p>it is the “unless you believe” part of the paragraph above that is the heart of my question. if we marry in alberta, then move to ohio, then doma is repealed, can’t we access federal marriage related laws simply by virtue of living anywhere within the united states? can the state of ohio really prevent the feds from giving me access to my spouse’s social security?
misread your question
that i haven’t been proven wrong (yet). đŸ˜€
I can’t give you a comprehensive answer to your question. However, for purposes of tax law, there is a 4th Circuit case dealing with a married couple who lived in MD and who would have been subject to the marriage penalty if they filed joint returns. They went on a New Years Eve Haitian vacation one year and a Dominican vacation the next year and got “divorces” in each of those foreign countries. They promptly remarried upon return to the US. The IRS challenged their divorces. The 4th Circuit held that since Fed. law defers to state law as to the definition of marriage, MD state courts were to decide whether to recognize the foreign divorces and the IRS would be stuck with the determination of the MD courts.
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p>So its not an exact answer, but its an example where Fed. rights will turn on the state definition of marriage of the state where the couple is currently domiciled.
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p>I know that particular case has an abusive tax scam aspect to it, but the court went out of its way not to reach the sham transaction argument. Here is a link to the case.
http://bulk.resource.org/court…
Unfortunately, this interpretation of the law is limited to the 4th Circuit. The actual case law on point is limited. There is a 2005 federal decision out of Florida which denied marital tax status to a lesbian couple married in Massachusetts per DOMA. At some point — not today, not tomorrow, but in a few more years, when there is a sufficient critical mass of GLBT married couples and couples in civil union, there will be federal challenges to the constitutionality of DOMA. However, since any such case will potentially end up at the Supreme Court, it’s got to be the RIGHT case, strategically speaking.
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p>In the meantime…
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p>Every estate planning attorney in Massachusetts is taught that in drafting for GLBT married couples, we must treat them as single for federal income, gift and estate tax purposes — but married for Massachusetts tax purposes. Under federal tax law, married straight couples can make unlimited lifetime gifts to each other; but GLBT married couples’ gifts are subject to gift taxation.
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p>Additionally as MassHealth is a federally funded program, the agency has followed the direction issued by the feds that it cannot treat a GLBT couple as “married” for purposes of Medicaid eligibility unless and until such time as our Legislature makes a separate pot of funds available to pay for care for such spouses– which is the case in Vermont, but has not occured here. (The CT Attorney General wrote an interesting memorandum of law describing this in more detail — http://ct.gov/AG/cwp/view.asp?… This fact makes the purchase of long-term care insurance all the more important for the GLBT community.
It’s hilarious to think that you can “ask the lawyers” to get an answer to something. First, you need to pay them money, then they need to know what you want them to say.
My opponents in this debate think that if a couple lives in a state that doesn’t recognize their marriage, they will not be eligible for the federal marriage benefits.
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p>I don’t believe any one would argue such a thing, are they SSM opponents or just opponents on this particular question?
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p>My opinion, social security and the IRS will take your word for being married and not care what state you live in or where you got married. What do they do now when someone claims social security benefits as someone’s spouse? Presumably they consult state records of the state they were married in.
This isn’t a matter of opinion — it’s federal law.
1 U.S.C. § 7 states:
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p>
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p>The IRS, Social Security, and every single state and local entity which receives federal funding and distinguishes eligbility for public benefits based on marital status cares very much.
Will SS or other federal agencies or courts care that I am living in a state that doesn’t recognize my marriage as valid?
As a practical matter, getting DOMA repealed is simply the right thing to do.
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p>The next step [AFTER but not BEFORE DOMA is repealed] would be to have a case with a relevant fact pattern and appealing clients to get law made in a state – or if the high court of the state did not recognize a same-sex couple married in Massachusetts, with children, residing in a state without same sex marriage in some appalling fashion [say, sadly, one spouse died and the surviving spouse who needed the life insurance could not receive it to take care of their children because it was life insurance supplied by an insurer, but only somehow collectable by a legal spouse – for the sake of discussion].
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p>But step one remains – and should be – the repeal of DOMA. That remains a worthy goal.
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p>”They” is wrong, in that I don’t say what someone wants me to say – I give it straight, to the best of my knowledge and understanding whether or not I think that is what a client wants to hear. Some therefore fire me, others appreciate me – it does differ.
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p>When there is a potential conflict of law situation, and a statute can be interpreted multiple ways, until the appropriate court interprets a statute, all an attorney can give is an educated guess.
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p>An example in this state would be the way that 28 USCA 1738a, the concept of subject matter jurisdiction, and Care and Protection of Vivian were interpreted in the recent case of Adoption of Yvette, http://www.socialaw.com/slip.h… Where the Appeals Court made part of the decision public and reported, and part not, and to reach their desired goal, held that subject matter jurisdiction could be waivable [that is not a holding I would have foreseen at all]
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p>I realize this answer is cold comfort, let me know if you need/want more.
Certainly since marriage is supposed to be a creature of state law, one could argue that Congress has overstepped its bounds. But I wouldn’t go there unless and until there is a much more progressive group on the Supremes.
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p>In the meantime, we certainly could look at challenging the Commonwealth in the state courts if the Lege refuses to step up and fund programs which receive federal funding and distinguish eligibility based on marital status. An SJC finding, for example, that MassHealth is discriminating against lawfully married SS couples on equal protection grounds would force the Legislature to pay attention.
An enumerated powers challenge is out since Congress is defining marriage for purposes of its spending powers and because, after Raich, commerce clause challenges are much tougher.
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p>That sounds like a 10th Amendment challenge, but I don’t think a 10th Amendment challenge would work. That doctrine was never really all that established before Garcia v. San Antonio unestablished it. I’m not sure if its officially dead, but even the more conservative members of the court were moving away from the 10th Amendment in favor of the enumerated powers line of cases in Morrison and Lopez. But, again, after Raich thats a very tough argument to make.
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p>Can a Congressional law be challenged as violating the Full Faith and Credit clause? I’ve never heard of that, but I could see a potential argument that the Full Faith and Credit clause requires a state to recognize another state’s valid marriage and DOMA violates that clause. However, I think the real defendant there would be the state, and the argument would be that the state must recognize another state’s valid marriage despite what Congress says because the Full Faith and Credit clause trumps a Congressional act. I’m not sure how that would play out, but its possible.
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p>But I think the most likely constitutional basis would be a standard 14th Amendment equal protection clause challenge, as incorporated into the 5th Amendment by Bolling v Sharp. But I doubt that could be successful. I can’t see a Federal court overturning DOMA under a rational basis standard. I know the MA court did in Goodridge, but I believe that in reality they were using a heightened standard of review closer to intermediate scrutiny than rational basis. A plaintiff might be able to argue that discrimination based on sexuality deserves intermediate scrutiny. But expanding the class of plaintiffs subject to a more heightened scrutiny than rational basis is not something courts do lightly.
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p>I’m just not sure that any potential constitutional challenge to DOMA would be successful. Do you see another possible constitutional challenge, or do you see one of the ones that I outlined being a strong case?