ABA Journal


U.S. Supreme Court

SCOTUS strikes down DOMA, which banned federal benefits to married gay couples

Jun 26, 2013, 02:10 pm CDT


"The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment."

By Anonymous on 2013 06 26, 2:40 pm CDT

Here is one of the most salient passages in Kennedy's decision: "DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment"

By EsqinAustin on 2013 06 26, 2:58 pm CDT

I'm not gay, and I am really, truly excited about the result. I bet I would be even more thrilled if I were gay.

By defensive lawyer on 2013 06 26, 3:18 pm CDT

The clock is ticking on the constitutionality of all laws banning SSM... after many recent muck ups, SCOTUS finally gets a couple of cases right.

By NoleLaw on 2013 06 26, 3:37 pm CDT

This case was correctly decided and, indeed, is the only reasonable interpretation of the holdings in view of precedent.

By faddking on 2013 06 26, 3:39 pm CDT

Scalia wrote. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”

Does this differ from Affordable Care Act "democratically adopted legislation" that Scalia would have liked to have invalidated last year?

Could someone educate me?

By nick on 2013 06 26, 4:05 pm CDT

#6 is missing the essential distinction.

Scalia is very much a results-driven justice. Where the desired result is consistent with the Constitution, then the Constitution gives the power to achieve the result.

By andrews on 2013 06 26, 4:10 pm CDT

@7 - I think that's exactly the point #6 is making. I think you agree. Mister Scalia reasons teleologically.

By Anonymous on 2013 06 26, 4:12 pm CDT

#6: You don't need to go as far back to the Affordable Care Act decision to find an example of Scalia's inconsistency. He can be inconsistent in his very next breath. Example - earlier this week he joined the Chief Justice in deciding that the democratically reaffirmed Voting Rights Act was unconsititutional, for no better reason than times had changed. Why that result isn't the arbitrary and capricious exercise of power by the imperial judiciary, but this decision is, I cannot determine.

The problem with Scalia is not just that he a results-driven justice. All justices, more or less, are vulnerable to the accusation that they have authored separate opinions that contradict each other in reasoning.

Scalia, however, is a particular problem because he is so outrageous in his language choices. He doesn't just choose the left hand over the right hand one day, and then the right hand over the left on the next day. On the day he chooses the left hand, he must loudly proclaim how the left hand is the only possible choice that serves reason, the law, the social order, and God, and that all those who choose the right hand are, basically, imbeciles. Then, on the next day, when choosing the right hand best suits his purposes, it is the right hand that serves reason, the law, etc. and the lefties are the imbeciles.

The louder and more outrageous his language, the more he reveals himself to be a hypocrite at best and a sociopath at worst - a hypocrite is he doesn't see his own inconsistency, or a sociopath if he sees it and plain doesn't care.

By plink on 2013 06 26, 4:29 pm CDT

Scalia's not uniformly outcome-determinative. If he was he'd not have joined the majority in the Prop. 8 case.

By AndytheLawyer on 2013 06 26, 4:42 pm CDT

the coolest possible thing that could happen as a result of this case is that Scalia marries a dude.

By defensive lawyer on 2013 06 26, 4:50 pm CDT

This case isn't about DOMA, or the definition of who can marry, but about the right of our citizens, through the US Legislature ( House and Senate) to collect taxes.
IT IS A DANGEROUS societal and constitutional, as well as moral, concern that our Courts are allowed to legislate and enact our laws. SCOTUS has now legislated a part of our tax code, and by doing so erased the 16th Amendment.
A graduated tax system, requiring some to pay more taxes on their incomes and estates than others, had been declared unconstitutional by SCOTUS. In order for a graduated tax system to be constitutional, our Constitution had to be changed, and that was done by the 16th Amendment.
This case was about a woman married (to another woman) in Canada (who's marriage was valid in Canada) who moved to the US (and then her marriage was not valid in the US), and who paid more estate taxes in the US as a single person than as a married person.
That's what the 16th Amendment is all about.
Not so many years ago the taxes on married individuals was greater than the taxes on two single individuals and that was known as the "marriage penalty". It wasn't intentional but it certainly existed until corrected by tax legislation several years later. There was no issue as to it's constitutionality, as the 16th Amendment allowed the legislature to pass laws that were not applied equally to all persons.
Query: By SCOTUS now striking down the unequal application of the tax code (for some but apparently not for all) do we now actually have the right to assume that the tax code MUST be applied equall to all, and without discrimination? Are all exemptions for, say, age, blindness, and number of children, as unconstitutional. If the 16th Amendment is now inherently discriminatory, then it is inherently discriminatory to allow more exemptions to some than to others, and, in fact, a graduated tax structure is also unconstitutional.

By davebert on 2013 06 26, 4:56 pm CDT

#10: Scalia's joining in the majority opinion of the Prop 8 case is consistent with the first part of his dissent in the DOMA case. If Scalia had confined his dissent in the DOMA case to just the issue regarding whether there was an actual case or controversy, he would have been logically consistent and, perhaps, correct, language choices notwithstanding.

But he doesn't stop there. He spends the second part of his dissent criticizing the Court for usurping the legislation and stifling democracy. And, since his reasoning in the second part would call for a different result than he joined in the Voting Rights decision and others, I am critical not only of his inconsistent, results-orented decisionmaking but also of his disrespectful, insulting, and condescending language choices in communicating his inconsistent decisions.

By plink on 2013 06 26, 4:59 pm CDT

@10 - I think he joined the majority in that case because it was the only way to avoid an even worse decision for his political opinion.

By Anonymous on 2013 06 26, 5:01 pm CDT

Otherwise, I must say, the comments here are superficial to say the least.

By davebert on 2013 06 26, 5:08 pm CDT

Scalia: “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” It's been a while since I read Marbury v. Madison, but isn't that EXACTLY the power the SC has?

By Neotchka Nezvanova on 2013 06 26, 5:12 pm CDT

@15 - Welcome to the internet.

Seriously, though, you raise something interested with the Sixteenth Amendment, I just don't think any of us are really prepared to sit down and process it at the moment.

I don't personally see the DOMA decision as mandating that taxes be applied equally, and I'm not sure that many people do (but if you have a good article on that, I'd certainly give it a read!).

By Anonymous on 2013 06 26, 5:14 pm CDT

@11 - That actually made me laugh out loud. Thanks.

By NoleLaw on 2013 06 26, 5:38 pm CDT

This case is NOT about DOMA. It IS about the 16th Amendment.
The 16th Amendment permits a tax code that allows for unequal taxation, tax rates, exemptions, and any other inequalities in the tax code that the legislature wants to pass. So, if the code gave a 100% exemption to incomes over a certain amount, or gave a double exemption to women, or did not recognize estates as marital estates, in which the decedent was married to a person of the same sex, that is permitted by the 16th Amendment.
So, with this case today from SCOTUS, what do we have ? I don't know. I think SCOTUS has said that tax laws cannot be applied unequally. That avoids the 16th Amendment. There will, and rightly so, be a waterfall of complaints about unequal application of tax laws.

By davebert on 2013 06 26, 6:02 pm CDT

@19 - I'm no constitutional law scholar, but I'm pretty sure that the 16th amendment does not trump equal protection. Apologies if my point is not responsive to your post, it was pretty unclear what your argument was.

By NoleLaw on 2013 06 26, 6:12 pm CDT

Clear message from SCOTUS: No Constitutional right to SSM.

By Marc on 2013 06 26, 6:22 pm CDT

@21: sure are desperate.

By EsqinAustin on 2013 06 26, 6:23 pm CDT

@22 - Please do not feed the troll.

By Anonymous on 2013 06 26, 6:25 pm CDT


Here's a short form analysis, since you want one. This is just this guy's thoughts and shouldn't be taken for anything of necessary value.

The 16th Amendment allows for the creation of an income tax without specifically saying it allows for an income tax in violation of any other specific amendment or constitutional clause, except where such amendment or clause prohibited the creation of an income tax.

Since that's the case, the tax code CAN give unequal benefits, hence why you can have a progressive tax at all, not to mention the deductions and credits, but, based on this ruling, the law cannot discriminate in its deductions and exemptions by attempting to define something that is traditionally the realm of the states to define. (i.e. marriage) So, if you're legally married in Massachusetts, you can claim the benefits of that marriage, EVEN IF that marriage would be illegal in say, Texas, and that the Federal government can't consider who you're married to in making your eligibility determination.

I think the ruling does more than that, but I was trying to specifically address 16th amendment issues in my post.

By OKBankLaw on 2013 06 26, 6:55 pm CDT

It seems to me that this decision is conferring rights to the States, that is, the right to regulate marriage - and the trend for decades has been to take rights away from the States. Are the states now free to regulate pot without interference from the Feds? I think #12 is spot on and this decision can be used to level the playing field and make a more sensible tax code.

By yakovbok on 2013 06 26, 7:01 pm CDT

I fail to see the relation to the 16th Amendment by itself, which merely gives the federal government the right to collect taxes on income. The plaintiff was complaining about paying estate taxes she would have been exempt from if her spouse had been of the opposite sex but DOMA reached far beyond the tax laws to every other federal statute, program or benefit. While I agree with the majority that DOMA was motivated by animus and denies same sex couples equal protection, I still believe the statute foundered on the full faith and credit clause. I don't think there is anything in the Constitution that requires recognition of same sex marriages in and of themselves but if a State chooses to permit such marriages, then the Federal Government is bound by the full faith and credit clause to recognize those marriages. There may come a point at which same sex marriages are so overwhelmingly accepted that such a right could be established under the Common Law and therefore fall under the 5th, 9th and 14th Amendments but that is not the reasoning I would have used. I find it strange that none of the opinions directly address the full faith and credit clause although I think Justice Kennedy's majority opinion raises that issue tangentially. Are there any thoughts on the specific legal arguments?

By George Sly on 2013 06 26, 7:02 pm CDT

Why are people discussing the 16th Amendment? This case was determined as an Equal Protection, 5th Amendment case.

By EsqinAustin on 2013 06 26, 7:19 pm CDT

I'm irrationally disappointed by Justice Scalia's dissent. I had a pipe dream that he would see the institution of marriage as a conservative value to support and uphold, and to see an opportunity to broaden the Republican tent. But I should read the dissent before being disappointed. Amazing how easily this majority/minority falls along party lines. Dare I say

By Tom Youngjohn on 2013 06 26, 7:31 pm CDT

Maybe now we can have marriage equality. The right to marry whoeever or however many you want. A dad should be allowed to marry his son and a man should be allowed to have 4 wives just like male and male or male and female.

By tim17 on 2013 06 26, 8:01 pm CDT

Dr. Peter Venkman: "This city is headed for a disaster of biblical proportions."

Mayor: "What do you mean, 'biblical'?"

Dr Ray Stantz: "What he means is Old Testament, Mr. Mayor, real wrath of God type stuff."

Dr. Peter Venkman: "Exactly."

Dr Ray Stantz: "Fire and brimstone coming down from the skies! Rivers and seas boiling!"

Dr. Egon Spengler: "Forty years of darkness! Earthquakes, volcanoes..."

Winston Zeddemore: "The dead rising from the grave!"

Dr. Peter Venkman: "Human sacrifice, dogs and cats living together... mass hysteria!"

By Anonymous on 2013 06 26, 8:04 pm CDT

I repeat, this time with authorities: Clear message from SCOTUS: No Constitutional right to SSM.

Chief Justice Roberts is decidedly less heated in his dissent. He wrote that the high court should not have ruled on this case, citing congressional action:

Interests in uniformity and stability amply justified Congress's decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.

Roberts also criticizes the majority's logic behind its case, putting further emphasis on the rights of states to determine marital statuses:
The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—"thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.
In another seperate dissent, Justice Samuel Alito argues that the federal government did not violate the Constitution by defining marriage. "It leaves the choice to the people, acting through their elected representatives at both the federal and state levels," he writes.

Taking a strict view of the Constitution, he continues, "the Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue."

“There is no federal constitutional right to same sex marriage.” Elena Kagan.

By Marc on 2013 06 26, 8:06 pm CDT

@31 - Not sure about Quebec, but here in the states a dissenting opinion is not "authority" for a proposition.

But in a strict sense I think you are right about there being no constitutional right to SSM. The problem occurs when states start sanctioning opposite sex marriages and deny same sex couples the same opportunities. That discrimination will, it seems pretty clear, soon enough be held unconstitutional in those few states that do not legalize SSM before the issue reaches the Supreme Court.

By NoleLaw on 2013 06 26, 8:19 pm CDT


It's incorrect to cite as a controlling authority a dissent to a majority opinion, especially since the dissent hasn't yet been adopted as part of a later majority opinion.

However, if you want to discuss Roberts Majority Opinion in the Hollingsworth v. Perry case, that's something else entirely.

By OKBankLaw on 2013 06 26, 8:21 pm CDT

Gentlemen, you are feeding the troll. Prior to this, he insisted that the case was non-justiciable and couldn't be talked out of it, despite the fact that his precedent was old and had never been successfully invoked by any opponent of equal rights. It shouldn't surprise you now that he thinks the majority opinion says something it doesn't.

Until a majority opinion is rendered on point, the question is open. That's seriously the end of it.

If either wing of the court was able to garner 5 votes to answer the question one way or the other, it doubtlessly would have!

By Anonymous on 2013 06 26, 8:25 pm CDT


You're right, I just hate it when people make factually incorrect statements.

By OKBankLaw on 2013 06 26, 8:27 pm CDT

Comment removed by moderator.

By NoleLaw on 2013 06 26, 8:29 pm CDT


Because there was a random rant from a guy about how this wasn't a DOMA or equal protection issue, but instead, a 16th amendment issue.

By OKBankLaw on 2013 06 26, 8:34 pm CDT

@35 - That's a classic trolling technique. On a lot of forums, they'll purposely misattribute quotes, refer to Star Wars as Star Trek, etc, etc, just to watch people go nuts over it. All you can do is not give them the attention they want and not allow them to get a rise out of you.

It's like throwing the apple labeled "For The Fairest" just to watch the chaos. Or running into a room of mathematicians and screaming "PI IS EXACTLY THREE!"

Did it surprise anyone else that this was called on Equal Protection grounds?

By Anonymous on 2013 06 26, 8:39 pm CDT

@31: you also have to be careful when citing to dicta as opposed to a holding. The holding was 5th Amendment - 1, DOMA - 0.

@27: 16th amendment = Taxes. Don't ask me why they're fixed on it; I think that saying someone's blind so we're going to give them a tax break because it's harder for them to make a living is readily distinguishable from saying that Dick and Jane deserve lower taxes than Bob and Ted, but hey, that's just my crazy opinion.

@29: I don't think any state allows anyone to marry more than one person-so everybody's being treated equally then! Problem solved! Seriously, I mean, does anyone spouting the slippery slope marriage argument really even believe the words coming out of their mouths or do you have to take giggle breaks every couple of minutes? Saying gay marriage is the gateway drug to polygamy doesn't even make sense.

@30: There is no Constitutional right for cats and dogs to live together!

By Robert B. on 2013 06 26, 8:49 pm CDT

Comment removed by moderator.

By Marc on 2013 06 26, 9:22 pm CDT

@32: "@31 - Not sure about Quebec, but here in the states a dissenting opinion is not “authority” for a proposition."

I'm not sure what you were taught at the on-line law school, but there was no majority opinion expressing a Constitutional right to SSM. There are very clear indications, however, that justices do not believe that there is such a right.

Absent a ruling by the majority, existing the Supreme Court ruling that state marriage laws restricting marriage to a man and a woman do not implicate the 5th Amendment nor even pose a Constitutional issue remains undisturbed precedent.

By Marc on 2013 06 26, 9:27 pm CDT

Two questions: So States are still free to pass laws (or constitutional amendments) limiting marriage to one man and one woman, right? After all, defining marriage has traditionally been the province of the States, yes?

And, who is going to pay for all of this? Federal tax revenues will be lower due to giving gay couples tax breaks -- breaks that, when enacted into law, were inarguably intended to benefit only those who entered into the traditional one man one woman marriage.

Ah, now I see why Obama flipped his stance on gay marriage (besides political expedience): this will be another reason to argue for increased taxes.

By Just Some Bloke on 2013 06 26, 10:07 pm CDT

@42 - Seems to me that the solution is to eliminate tax breaks for marriages altogether. A number of us have continually advocated that the government should not be in the business of recognizing marriages at all or providing legal benefits based thereupon.

By Anonymous on 2013 06 26, 10:14 pm CDT

Certainly there are a lot of pitfalls to marriages, and they are becoming increasingly temporary as time passes. The more governments promote them, the more work there will be for lawyers.

By B. McLeod on 2013 06 26, 11:05 pm CDT

@42: "So States are still free to pass laws (or constitutional amendments) limiting marriage to one man and one woman, right? After all, defining marriage has traditionally been the province of the States, yes?"

The Court did not rule on that question, so yes, for the time being only that is true.

"And, who is going to pay for all of this? Federal tax revenues will be lower due to giving gay couples tax breaks—breaks that, when enacted into law, were inarguably intended to benefit only those who entered into the traditional one man one woman marriage."

Fortunately, LGBT rights under the Fifth Amendment are not dependent on "who pays for it."

By EsqinAustin on 2013 06 27, 12:15 am CDT

I think there are probably at least a few other things that are true as well.

By B. McLeod on 2013 06 27, 3:28 am CDT


I believe it's a question of a misplaced comma, the context of the sentence seems to indicate that it should read "... for the time being only[,] that is true."

By OKBankLaw on 2013 06 27, 1:50 pm CDT

He's just filling in for Pushkin, who has yet to make an appearance on this thread. Props, B.

By NoleLaw on 2013 06 27, 1:53 pm CDT

Well, it could be worse, there's the matter of the inconsistent comma in the takings clause of the Constitution.

By OKBankLaw on 2013 06 27, 1:55 pm CDT

#29 -- Lions and tigers and bears...Oh my!

By AndytheLawyer on 2013 06 27, 2:31 pm CDT

@50: "Hey, Waylon! Who's the bear? Ruff!"

/Simpsons quote

By EsqinAustin on 2013 06 27, 2:34 pm CDT

Anonymous @ 43: well, yeah, I think that in theory that's a pretty solid position and may be where we're heading -- although it would seem to be politically impossible to do, unless you offset it with much lower across-the-board tax rates -- something that, as appealing as it is, we're not really in a position to do currently given the hundreds of billions in annual deficits and trillions in debt. But if we as a society decide that we no longer believe that marriage promotes social & financial stability and provides the optimal environment for raising children and enhancing the chances of survival of the human race, then yes, we should no longer subsidize marriage.

Esq. @ 45: "Fortunately, LGBT rights under the Fifth Amendment are not dependent on 'who pays for it.'” In my experience, liberals (and, to be fair, neo-cons) are virtually never concerned with "who pays for it." And as to whether that is "fortunate" or not, I suppose that depends not only on one's sexual orientation but also on whether one is one of the people who actually ends up paying for it.

By Just Some Bloke on 2013 06 27, 2:52 pm CDT

@52 - You raise some very good points on where the money comes from, please don't feel that they're disregarded. Liberals and moderates understand financial realities. (Many of us just don't understand why the money isn't coming from large corporations that are profiting from American laws, markets, and infrastructures!)

But the fact remains that "Who pays for it" is simply not part of the legal or ethical calculus that underlies equality. If the benefit can't be extended to everyone, well, maybe it's time to decrease it and distribute it equally. Or maybe do away with it altogether. Or apply it using a lottery system. But it *cannot* be applied in a discriminatory fashion that lacks a rational, non-moral basis.

And per your first comment -- is there any empirical evidence showing a link between marriage rates and tax subsidies?

Let's assume that there is a link and that subsidies do increase marriage rates. Given that the divorce rate is astronomical, do we WANT people getting married just for the tax benefits? Could the subsidy, in fact, be what is causing people to enter into marriages for the wrong reason that ultimately fail?

By Anonymous on 2013 06 27, 3:01 pm CDT

@43: Bingo. While we're at it, let's abolish the IRS and adopt a fair, flat tax, with exemptions for the poor. Government should be prohibited from engaging in social engineering and otherwise influencing human behavior to suit its agenda.

By musiclawyer on 2013 06 28, 12:52 pm CDT

So can all legally married gay people now go back and recover financial benefits they were previously denied due to DOMA?

By Just Wondering on 2013 06 28, 2:15 pm CDT

OK, people, a voice from England where we are legalising SSM at this moment.

If John and Charles or Susan and Sally marry tomorrow in State A - where they may - and own a second home in State B - where they could not have done; and John or Sally dies intestate; can Charles or Sally get whatever breaks the law of State B of intestacy or of inheritance tax gives surviving spouses?

And how many lawyers will such questions keep in clean linen for how long?

By Andrew on 2013 06 28, 2:24 pm CDT

@56 - Our Constitution has a "Full Faith and Credit Clause" that *arguably* requires State B to honor State A's recognition of the marriage. ( I've used the word "arguably" to try to avoid the "WHAAARRRGARRRBL" from certain parties in the peanut gallery. Any reasonable person should be able to accept that statement as true. The FFC application here is beyond the scope of the article and there are lots of complicated arguments on how it might apply to this -- I'm not getting into them here. But I encourage you to read up on it if you're interested! It's a whole other can of worms.)

Fundamentally, yes, you are right, there will be litigation to settle how a piecemeal network of states providing equal and unequal rights to their citizens works in practice.

By Anonymous on 2013 06 28, 2:34 pm CDT

@57 Anonymous - don't shy away from it! Embrace the use of "argle-bargle" as recently introduced by the esteemed Justice! Easier to spell than "WHAAARRRGARRRBL"..... Happy Friday, everyone!

By Netochka Nezvanova on 2013 06 28, 4:19 pm CDT

@12 Got it right.

Maybe I've missed this in all the discussions on the case: how can you apply equal protection to two things--a fundamentally sterile marriage and one that procreative--that are so different? One creates life, one doesn't. Under one marriage, to have kids you have to take someone else's. No? This is as simple a fact as I can think of.

I don't know why our tax code can't reflect a fundamental distinction such as this, or why all laws must be applied equally in this regard to homosexual and heterosexual couples. Perhpas there can be some laws in which homo/hetero get the same treatment, but why do we need a blanket rule for all laws? The Supreme Court would have done good to in some way limit its holding and leave room for the states to continue to govern marriage. Unfortunately, as Scalia pointed out (and in spite of the majority's own disingenuous disclaimer), the Court has really undermined democracy in our country, not just of the federal government but also of the states' power to govern.

By Andy on 2013 06 28, 9:26 pm CDT

59: And a male and female couple one of whom, usually the wife, very unfair but I'm not sure Whom you would sue or how you would serve the process, is past procreation when they marry?

Or one of whom is sterile and knows it?

Or both of whom agree not to procreate?

By Andrew on 2013 06 28, 9:52 pm CDT

@55: Depends. The IRS allows peop.le to go back and refile their taxes for three years-so that would seem to be automatically in. Other benefits will probably depend upon regulations drawn up by the federal agencies in response to the ruling-which will mean more suits as someone gets denied a benefit that they would have qualified for but for DOMA, which means this isn't over yet.

By Robert B. on 2013 06 29, 12:24 am CDT

I thought DOMA unconstitutional when signed by Low Friction. A move to spike the constitutional amendment folk. - full faith and credit, don't you know. And it worked.
That being said, it seems to me that a legislature could simply repeal its family/marriage codes and abolish marriage entirely as a legal institution. No?

By George Renneberg on 2013 06 29, 12:27 am CDT

Scalia, as usual, was exactly right. Thankfully, there are still 38 states that protect marriage. But, the Homosexual Normalization Lobby will now be attacking marriage in those states by demanding that they create legal fictions that homosexual relationships are capable of being “marriages.”

By Slaw on 2013 06 29, 4:12 pm CDT

With the invalidation of DOMA, there will be immediate issues for tax qualified pension and welfare benefit plans operating in every state, because the federal tax code controls the coverage requirements and beneficiary definitions for all of them. Hence, a plan in Texas may be immediately forced to determine whether it will extend "spousal" recognition to a the same-sex spouse of a participant who was married in a state that recognizes such marriages, and immediate litigation is likely. Despite the facial concern for federal/state comity in the Court's opinion, the justices surely could not have been ignorant of the fact that federal ERISA and Tax Code provisions are going to force federalized same-sex marriage on the states.

By B. McLeod on 2013 06 29, 5:38 pm CDT

clarification @16 -- Destination Wedding

[ This case was about a woman married (to another woman) in Canada (who’s marriage was valid in Canada) who moved to the US (and then her marriage was not valid in the US), and who paid more estate taxes in the US as a single person than as a married person. ]

Nope. Its about a couple who were New York residents and had a 'Destination Wedding' in Canada. They went to Canada, they got married, they came back to their state of domicile and residence: New York. New York recognizes SSM, therefore, they were a legitimate New York married couple at the time of Dr. Spyer's passing. Dr. Spyer and Ms. Windsor were long time residents of New York. Never 'moved to' or 'from' Canada.

Destination weddings are all the rage. Should couples going to Playa del Carmen for a destination wedding worry about being considered Mexican moving to the US on their way back home?

Hmmmm.... Wouldn't we have to worry about this becoming an.... Immigration issue, then?

By sanja on 2013 07 09, 8:32 pm CDT

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