A further look at the DOMA and Prop 8 decisions

By : Tom Dyer
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June 26, 2013 was an extraordinary day – a watershed in the history of the LGBT rights movement. In two court cases, and one fell swoop, the Supreme Court advanced the struggle for LGBT equality immeasurably.

Minutes after the cases were announced, President Barack Obama tweeted: “Today’s DOMA ruling is a historic step forward for #MarriageEquality. #LoveisLove.”

Hundreds of thousands joined him in celebrating the decisions – on the steps of the Supreme Court building, at joyous rallies in Orlando and Tampa, and during the weekend at buoyant Pride parades in St. Petersburg, New York, San Francisco and throughout the nation.

“History has been made in our nation,” Orlando City Commissioner Patty Sheehan told a crowd of 4,000 in Orlando. “Edie Windsor, a senior citizen armed only with her love of another woman and the life they created together for 42 years, did what activists have tried to do for decades – she toppled DOMA!”

An extraordinary week
Windsor was forced to pay $363,000 in estate taxes when her wife, Thea Spyer, died in 2009 and the Internal Revenue Service refused to recognize their legal marriage.

In United States v. Windsor, a narrow 5-4 majority of the Supreme Court found Section 3 of the Defense of Marriage Act unconstitutional, thus giving legally married same-sex couples access to all the federal benefits of marriage. Among them – an unlimited estate tax exemption for Windsor.

And in Hollingsworth v. Perry, an equally divided Court refused to consider the constitutionality of California’s Prop 8 ban on same-sex marriage, thus legitimizing a lower court ruling that paved the way for legal same-sex marriage in the nation’s most populous state.

By the weekend, both couples who sued to overturn Prop 8 were married: Kristin Perry and Sandra Stier by California Attorney General Kamala Harris in San Francisco’s City Hall, and Pual Katami and Jeff Zarillo by Los Angeles Mayor Antonio Villaraigosa on his last day in office. And on Sunday, Supreme Court Justice Anthony Kennedy, who wrote the stirring majority opinion in Windsor, denied a last-ditch request by the sponsors of Prop 8 to halt marriages in the state.

“When the Supreme Court ruled, the country shifted,” said Nadine Smith, executive director of Equality Florida. “Today more than 86 million Americans, more than one-third of the country, live in states where full access to marriage is provided.”

Those families will now be supported by the full range of more than 1,000 federal benefits accorded to married couples, and previously denied them by Section 3 of DOMA. They impact income and estate taxes, social security benefits, health care and other employee benefits, military benefits and immigration rights. (See sidebar.) In Massachusetts, the first state to offer full marriage equality, some same-sex couples have been legally married for almost 10 years.

“For the first time ever, the federal government will now recognize the validity of marriage between same sex couples,” said Orlando activist and attorney Mary Meeks.

Florida and the future
But for Floridians, it may be necessary to tap the brakes a little.

Section 2 of DOMA was not addressed in Windsor and remains intact. It states that, “No State… shall be required to give effect to any public act… or proceeding of any other State respecting a relationship between persons of the same sex that is treated as marriage.”

And because the court sidestepped the constitutionality of state bans on same-sex marriage, they also remain legal. Florida has two such bans: a statute and a constitutional amendment.

The sobering result: same-sex couples still can’t get married in Florida. And if they get married in a state where it’s legal, it still won’t be recognized here – at least within state boundaries.

“For Floridians, the Supreme Court’s rulings fall short of justice, and are more than anything a call to action,” said Equality Florida’s Smith.

But for all Americans Justice Kennedy’s DOMA decision remains a dazzling thing to behold, and a likely precursor to the eventual demise of marriage inequality. (Read the full opinion at SupremeCourt.gov. A bitter bookend was provided by Justice Antonin Scalia, whose scowling 25-page dissent predicted that the Court would eventually make same-sex marriage legal throughout the land.

Justice Kennedy, the author of two prior landmark decisions on gay rights, minced no words in describing DOMA’s impermissible intent.

“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. And it humiliates tens of thousands of children now being raised by same-sex couples.”

Justice Kennedy swatted away the professed justification for DOMA – to facilitate procreation within the traditional family unit.

“The principal purpose and necessary effect of [DOMA] are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

As Justice Scalia pointed out in his petulant dissent, the same argument can be applied to bans on same-sex marriage.

“[The majority has concluded that] DOMA is motivated by bare… desire to harm couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Indeed, Scalia whined that the Court’s DOMA decision makes that result virtually inevitable.

“That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive.”

Questions remain
In the meantime, the Court’s DOMA decision raises a number of questions – mostly for couples like Meeks and her partner, Vicki Nantz, who were legally married in Massachusetts but reside in Florida, a state that does not recognize their marriage. Will they have access to federal benefits anyway? And if so, which ones?

For his part, President Obama announced that his administration has already begun a sweeping assessment of pertinent rules and regulations throughout all departments of the federal government. And it wasted no time taking immediately permissible steps.

“Today my Administration announced that, for the first time in history, we will be making important federal employee benefits, including healthcare and retirement benefits, available to eligible married gay and lesbian couples and their families,” Obama said in a June 28 statement. “This is a critical first step toward implementing this week’s landmark Supreme Court decision declaring that all married couples – gay and straight – should be treated equally under federal law.”

But the federal government typically defers to the states on matters of marriage. And for marriages that involve more than one state, there is no sweeping federal rule.

“It’s an open question that may require additional litigation,” said Meeks.

According to a fact sheet put out by the Respect for Marriage Coalition, “Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.”

Bottom line: a legally married same-sex couple living in a state, like Florida, that does not respect their marriage may have almost immediate access to some federal rights and benefits, but not many others. And that may change, for better or worse, as the Administration adjusts and its policies are challenged.

“The validity of a couple’s marriage should not be determined by where their airplane lands or their U-Haul parks,” said Orlando attorney Larry D. Smith, recipient of the American Bar Association’s 2013 Diversity Leadership Award

Bobby Jo Cameron, who attended the June 27 Marriage Equality Rally at Orlando’s Lake Eola Bandshell with her partner, Casey Barnhardt, and their two-year-old daughter, agrees.

“I cried when I heard about the decisions,” Cameron said. “I celebrate for my friends who live in states where it’s meaningful, and I hope this will inspire and motivate people to get this done in Florida.”

The Court’s DOMA and Prop 8 decisions reflect rapidly changing public opinion on LGBT equality. According to recent public opinion polls, more than half of Americans – and Floridians – now approve of full marriage equality.

Meaning much work was done to get us to this watershed moment, and that work was celebrated last Saturday in soggy St. Pete.

“As we celebrate the enormity of this moment, let’s remember what it took to reach this point,” said St. Pete Pride executive director Eric Skains. “We are here thanks to the courage and leadership of pioneers who toiled through decades and carried us to this moment.”

DIFFERENT WITHOUT DOMA

Military Benefits: Benefits granted to opposite-sex military spouses – e.g. health care, housing allowances – will now apply to same-sex spouses. Spouses of deceased veterans will be eligible to receive benefits.

Social Security: A surviving same-sex spouse can now collect the deceased spouse’s Social Security checks if that amount is higher than what he or she was receiving.

Income Tax: Same-sex married couples can now file jointly, although for some this will result in higher taxes.

Estate Tax: Same-sex couples may now leave unlimited assets to their spouse without incurring federal estate taxes.

Retirement Plans: A deceased spouse’s IRA can now roll over into the survivor’s account without being taxed first.

Health Care: Same-sex married couples and their families will now have access to continued COBRA coverage after leaving employment. Medicare spousal benefits apply.

Federal Employees: Same-sex married couples and their families will enjoy the full range of benefits, including access to health care, medical leave, etc.

Immigration: Married persons can now sponsor a visa for a gay spouse who is not a citizen, and that spouse will also receive preference for citizenship.

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