National Association of Estate Planners and Councils

June, 2014 Newsletter
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Frank Berall: Status of Same-Sex Marriage in the United States

“The constitutionality of DOMA is now affecting litigation involving same-sex couples in a number of states. In many respects, a revolution in American law is taking place.”

We close the week with LISI Commentator Team Member Frank S. Berall’s commentary on the current status of same-sex marriage as of May 1, 2014. 

Frank S. Berall, principal of Copp & Berall, LLP and Senior Tax Consultant to Andros, Floyd & Miller, P.C, both of Hartford, CT, is Chairman of The Federal Tax Institute of New England.  This is presenting its fourth annual program in Hartford, CT on Friday, October 24, 2014.  Frank was Co-chairman (from 1977 through 2009) with Prof. Regis Campfield, of the Notre Dame Estate and Tax Planning Institute

He is on the editorial boards of the Connecticut Bar Journal, the Connecticut Lawyer and Estate Planning.  A former Regent of the American College of Trust and Estate Counsel, he was also a Vice President of the International Academy of Estate and Trust Law, as well as Co-chair of the Hartford Tax Institute’s Advisory Council for ten years and a part-time faculty member at the Yale Law School, the University of Connecticut Law School and the University of Hartford’s Graduate Tax Program.  He is a Distinguished Accredited Estate Planner® having been elected to the Estate Planning Hall of Fame® at the National Association of Estate Planners & Councils’ November 2013 meeting.

A frequent speaker at many tax institutes, Frank has published 163 articles, a number of LISI estate planning newsletters, portions of 13 books and co-authored two Tax Management Portfolios.  He has all but finished another on same-sex relationships and is a candidate for a Ph.D. degree in law at the Netherlands’ University of Leiden.  His thesis is on that subject.  Recognized for his expertise in both trust and estate and tax law in all 31 editions of the Best Lawyers in America, Frank is one of the top 50 Connecticut Super Lawyers and the New York area’s Best Lawyers.

Here is his commentary:


In view of the unconstitutionality of the Defense of Marriage Act (DOMA) same-sex marriage has resumed in California.  However, a number of other questions have arisen.  Lower court judges are now dealing with these consequences.  They are described herein.

States now permitting same-sex marriage are:  California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, the District of Columbia and several American Indian tribes.  However, other states, mentioned below, not permitting same-sex marriage, do permit civil unions or broad domestic partnerships. A description of the I.R.S. release of frequently asked questions is covered, as are the change in the military’s “don’t ask—don’t tell” policy.


The constitutionality of DOMA is now affecting litigation involving same-sex couples in a number of states.


In many respects, a revolution in American law is taking place.

I. INTRODUCTION           

The United States Supreme Court held the U.S. federal Defense of Marriage Act (known as DOMA) unconstitutional on June 26, 2013.[1]  United States federal law neither explicitly requires nor prohibits any state from honoring same-sex marriages that have been validly celebrated elsewhere. 

A. Jurisdictions Allowing Same-sex Marriages or Considering Them to be Illegal 

As of May 1, 2014, 17 states of the United States, its District of Columbia and 17 other countries allow same-sex marriage.  The U.S. jurisdictions are California, Connecticut, the District of Columbia, Hawaii, Illinois (effective June 1, 2014), Iowa, Massachusetts and New Jersey (all by court decisions), Delaware, Minnesota, New Hampshire, New Mexico, New York, Rhode Island, and Vermont.  Legislatures of the above states enacted laws upholding same-sex marriage.  Maine, Maryland and Washington’s electorates voted for it.  Additionally, several Native American tribes[2] permit same-sex marriage.      

States banning same-sex marriage, both by Constitutional amendment and state law, are  Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.  Indiana, Pennsylvania, West Virginia, and Wyoming have banned it only by state law. Nebraska, Nevada, and Oregon have banned it by constitutional amendment alone.  

Same-sex marriages are considered valid in Argentina, the Australian Capital Territory (but not elsewhere in Australia), Belgium, Brazil, Canada, Denmark, Ecuador, France, Iceland, several Mexican states and its federal district, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, and Uruguay.  However, Nigeria, Saudi Arabia, and Uganda have made same-sex marriage a criminal offense, subject to a possible death penalty. 

Civil unions or broad domestic partnerships, but not same-sex marriages, are legal in Colorado, Nevada, Oregon, and Wyoming.  States providing some protections for same-sex couples, other than marriage are Indiana and West Virginia.      

Neither same-sex marriage nor civil unions are recognized in Alabama, Alaska, Arizona, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah nor Virginia.    

On January 14, 2014, Oklahoma’s federal district court Judge Terence C. Kern ruled that Oklahoma’s constitutional provision restricting marriage to opposite sex couples violates the U.S. Constitution’s Fourteenth Amendment’s[3] equal protection clause.  This provision had been passed by nearly 76% of Oklahoma’s voters in 2014.  Judge Kern said “the majority view in Oklahoma must give way to individual constitutional rights.”  Since he stayed the effect of his ruling pending its appeal, this prevented same-sex marriages from beginning immediately in Oklahoma.  He relied heavily on the U.S. Supreme Court’s invalidation of DOMA.[4]  In December 2013, a Utah federal judge had made a similar decision.  This was also put on hold, pending its appeal to the U.S. Supreme Court. 

Alaska, Arizona, and Montana, while not recognizing same-sex marriages or civil unions, allow certain limited domestic partnership benefits to same-sex partners of state employees.  Since July 1, 2009, Colorado has permitted any two unmarried adults to enter into a designated beneficiary agreement.  These agreements provide certain rights and responsibilities, including hospital visitations, medical decisions, and inheritance.  

Thus, as of May 1, 2014, seventeen states of the United States and the District of Columbia (in which Washington, the U.S. capital is located) now allow same-sex marriage.  Although Oklahoma and Utah federal district courts also allowed it, cases in both these states have been stayed, pending their appeals to the U.S. Supreme Court. 

None of the United States territories of American Samoa,[5] Guam, Puerto Rico, nor the U.S. Virgin Islands have laws either allowing same-sex marriages nor dealing with those solemnized elsewhere.  


The Windsor[6] case was a five to four decision by the U.S. Supreme Court on June 26, 2013.  In it, Justice Kennedy held DOMA’s section 3 to be an unconstitutional “deprivation of the equal liberty of persons protected by the [U.S. Constitution’s] Fifth Amendment.[7]  [He said] DOMA violates basic due process and equal protection principles applicable to the Federal Government…[and its] unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.”         

“[Furthermore,] DOMA’s…Section 2…[allowing] states to refuse to recognize same-sex marriages performed under the laws of other states [has not been challenged.]   Its definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status,” Justice Kennedy concluded.         

The other June 26, 2013 U.S. Supreme Court same-sex case was Hollingsworth et al v. Perry et al.[8]  This affirmed a California Federal District Court’s holding that California’s Proposition 8’s amendment to the California Constitution to ban same-sex marriage was unconstitutional. Thus, after part of DOMA had been declared unconstitutional by the U.S. Supreme Court in Windsor v. United States,[9] same-sex marriage resumed in California the next day, June 27, 2013, based both on the Windsor[10] and. Perry[11] cases. Judges in lower courts now cite and even build on the former in controversies over state laws about same-sex marriage, as well as other issues affecting gays and lesbians. 


Almost a majority of Americans now believe same-sex marriage should be legal.[12]  Developments occurring since DOMA’s section 2[13] was held unconstitutional by the Windsor[14] case include several lower court cases as well as an analysis of the probability that DOMA’s section 2[15] may not survive a constitutional challenge, on full faith and credit grounds.[16]  

Revenue Ruling 2013-17[17] provides that same-sex couples, legally married in jurisdictions recognizing their marriages, are treated as married for federal tax purposes,[18] if living in any jurisdiction recognizing same-sex marriage.[19]  This is because DOMA’s key provision was invalidated by Windsor.[20]  The revenue ruling stated that: 

Same-sex couples will be treated as married for all federal tax purposes, including income, gift and estate taxes.  The ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law. 

Legally-married same-sex couples generally must file their 2013 federal income tax return using either the ‘married filing jointly’ or ‘married filing separately’ filing status. 

Individuals who were in same-sex marriages may, but are not required to file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.  [F]or filing a refund claim [it] is the later of three years from the date the return was filed or two years from the date the tax was paid. 


Conflict of laws problems have already arisen over differences in laws of those jurisdictions allowing same-sex marriage and those that do not.   As mentioned above, as of May 1, 2014, it is now legal in 17 states and the District of Columbia.  Since a marriage’s validity is determined by the law of the jurisdiction celebrating it, little attention is paid to conflict of laws principles in U.S. same-sex marriage cases.  Many of them often cursorily refer to a full faith and credit claim[21] by the parties, while dismissing its relevance on the basis of either DOMA, a public policy exception or both.  Thus, conflict of law rules do little either to obscure or obviate problems of migrating same-sex married couples.  These rules even apply when marriages cross state borders. 

Same-sex couples who marry in a jurisdiction permitting same-sex marriage, and later move to one not recognizing it, when they try to obtain spousal benefits or even a divorce, may not be successful.  Since there may always be potential conflict of laws, that must be considered in the couple’s planning. 

The major conflict of law cases are the Miller-Jenkins[22] ones.  These involved a dispute between two women over a child, where litigation occurred in both Vermont and Virginia courts. 


Civil unions or broad domestic partnerships are legal in Colorado, Nevada, New Jersey, New Mexico, Oregon and Wyoming.  Other states providing some protections for same-sex couples are Pennsylvania, West Virginia and Indiana. 

New Jersey’s Governor Chris Christie said he would veto a same-sex marriage bill and challenged New Jersey’s legislature to put the issue on the 2012 ballot.[23]  Democrats, controlling the legislature objected, since a same-sex marriage bill is a Democratic priority in that state.  Governor Christie’s subsequent suggestion that the ballot question be presented as a constitutional amendment was not adopted. 

A Quinnipiac University (Connecticut) poll found 52% of New Jersey voters believe that same-sex couples should have the right to marry while 53% believe denial of this right is discrimination.[24]         

On October 11, 2012, the New Jersey Assembly and Senate introduced identical bills authorizing a fiduciary to join with a partner in a civil union or a domestic partnership (as well as a surviving spouse) to file a joint state return.  However, at least until the Windsor[25] case, joint federal returns could not be filed by same-sex couples anywhere.  Whether one can do this  now requires clarification by the I.R.S. 


Neither same-sex marriage nor civil unions are recognized in Alabama, Alaska, Arizona, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah nor Virginia.  Furthermore, federal law neither explicitly requires nor prohibits a state to honor a same-sex marriage validly celebrated in another jurisdiction.

While North Carolina already has a statute banning same-sex marriage, its electorate also amended that state’s constitution (61% to 39%) during a May 8, 2012 primary election.  This amendment banned same-sex marriage, defining marriages as being strictly between a man and a woman.  Backers of this constitutional ban believed it would become harder for a judge or future legislature to overturn.  Thus, this makes it far more difficult for future legislatures to extend marriage rights to same-sex couples. 

Furthermore, under this constitutional amendment, both domestic  partnership  benefits offered by public  institutions and the application  of  domestic violence laws[26] may be questioned.  The ban may even bar North Carolina from sanctioning civil unions.  

Alaska, Arizona and Montana, although not recognizing same-sex marriage or civil unions, do allow certain limited domestic partnership benefits to same-sex partners of state employees.  Since July 1, 2009, Colorado has permitted any two unmarried adults to enter into a designated beneficiary agreement.  This provides certain rights and responsibilities, including hospital visitation rights, medical decision making authority and inheritance rights.  Hawaii has somewhat similar laws.[27]


DOMA,[28] which does not allow same-sex couples to marry, was initially held unconstitutional on May 31, 2012, when the First Circuit Court of Appeals (in a 3 to 0 ruling), affirmed both the Gill and Commonwealth of Massachusetts cases.[29] However, the U.S. Supreme Court declined to hear these cases. 

Windsor v. United States[30] allowed a refund of federal estate tax levied on the estate of plaintiff’s deceased same-sex spouse.  Plaintiff’s and decedent’s legal marriage in Toronto, Canada was recognized by New York, but federal law did not recognize it because of DOMA.[31]  Plaintiff, the decedent’s surviving spouse and her executrix, paid $363,053 in federal estate tax.  This would not have been due if federal law had recognized their marriage.  The marital deduction would have then precluded any tax. 

On April 7, 2010, decedent’s executrix claimed the marital deduction and a refund of the $363,053 federal estate tax.  She alleged DOMA unconstitutionally discriminated against her, by not recognizing her marriage due to the couples’ sexual orientation.  Furthermore, because of DOMA, plaintiff alleged she was ineligible for a surviving spouse’s Social Security lump sum death benefit[32] and widow’s insurance benefits.[33] 

The I.R.S. disallowed her refund claim on May 26, 2010.  It said that “[s]ince both spouses were women and since, under DOMA, [the word] ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife, Internal Revenue Code section 2056 [allowing a marital deduction in computing a federal taxable estate] is inapplicable, because the surviving spouse is not a spouse as defined by DOMA.”  

Plaintiff’s prayers for relief were that DOMA be declared unconstitutional as applied to her as executrix, that the United States be enjoined from continuing to discriminate against her by treating her differently from similarly situated individuals married to persons of the opposite sex and that she be awarded $363,053, plus interest and costs.[34]  

Whether a couple is married for purposes of the federal estate tax marital deduction ordinarily depends on their being considered validly married under their state’s law.[35] Rev. Rul. 58-66,[36] states that "The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws,"[37] as well as the federal estate and gift tax laws.  While it deferred to New York's recognition of the validity of a marriage, the ruling merely recognized common law marriages for tax purposes.    

Since the United States’ Justice Department refused to defend cases attacking DOMA, the House of Representatives then formed a Bipartisan Legal Advisory Group (hereafter called BLAG) to defend them on behalf of the government. 

Federal District Court Judge Barbara S. Jones held DOMA’s efforts to define marriage “intrude upon the state’s business of regulating domestic relations . . . [skirting] important principles of federalism and therefore cannot be legitimate in this court’s view.”[38]  She cited Massachusetts v. Health and Human Services[39] to point out that “where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” 

She pointed out that Golinski v. Office of Personnel Management[40] held that “states may choose, through their legislative or constitutional processes to preserve traditional marriage or to redefine it.”  Since DOMA tries to reexamine state’s decisions concerning same-sex marriage, its sweeping review interferes with the system of government placing matters at the core of the domestic relations law exclusively within the province of the states. 

In the Golinski[41] case, a lesbian federal employee claimed her same-sex spouse was wrongly denied health insurance. She alleged that DOMA violates the Fourteenth Amendment’s equal protection provision.[42]  

A.  The U.S. Supreme Court Invalidated DOMA

The decisions in the two major U.S. Supreme Court same-sex marriage cases were announced on June 26, 2013.  They were Windsor[43] and Hollingsworth v. Perry.[44]  Unlike other DOMA cases, Perry[45] challenged California’s voter initiative, banning same-sex marriage.  Plaintiffs asked for a declaration that marriage is a fundamental right. However, Perry[46] was returned to the California Federal District Court, because the U.S. Supreme Court held the intervenors in that case had no standing to sue.  It then found California’s Proposition 8 to be unconstitutional.

Windsor[47] held section 3 of DOMA unconstitutional, in a 5 to 4 decision by Justice Kennedy.  The I.R.S. had barred plaintiff, a surviving spouse, from claiming the federal estate tax marital deduction from the gross estate of her deceased same-sex spouse.  Her refund claim of $363,053 for federal estate tax paid was denied by the Internal Revenue Service.   BLAG,  having previously being allowed to intervene in same-sex cases to defend the constitutionality of DOMA’s section 3, opposed the refund.  The Federal District Court for the Southern District of New York allowed it[48] and was affirmed by the Second Circuit.[49]

Justice Kennedy, writing for the U.S. Supreme Court’s 5 to 4 majority in Windsor, held the United States retained a sufficient stake to support its Article III jurisdiction under the U.S. Constitution[50] and could appeal the award to plaintiff.  He held DOMA unconstitutional “as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” He pointed out that “the definition and regulation of marriage has been treated as being within authority and realm of the separate States.” 

Furthermore, he said “DOMA violates basic due process and equal protection principles applicable to the Federal Government . . . [and its] unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.” 

Thus, “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages.  It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State.  It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.” 

“DOMA’s . . . Section 2 . . . [allowing] states to refuse to recognize same-sex marriages performed under the laws of other states [has not been challenged.]   Its definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status.” 

When President Obama “instructed the Department [of Justice] not to defend . . .  [DOMA],” BLAG had intervened to defend the constitutionality of its section 3. Although the District Court denied BLAG’s motion enter the suit as of right, since the Department of Justice already represented the United States, it granted BLAG’s intervention as an interested party. 

“[The United States was held to have] a valid legal argument that it is injured even if the Executive disagrees with § 3 of DOMA, which results in Windsor’s liability for the tax.  Her claim for the refused refund “establishes a controversy sufficient for Article III jurisdiction.”  While the Court’s jurisdictional right to hear the pending suit was extensively discussed, none of this is actually relevant to the same-sex marriage substantive issue. 

Justice Kennedy gave several examples of cases establishing “the constitutionality of limited federal laws that regulate the meaning of marriage . . .  [to] further federal policy, [but he said] DOMA has a far greater reach  . . .  [by enacting] a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations.”  He pointed out that the federal government “has deferred to state law policy decisions with respect to domestic relations [and] the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction.” 

DOMA, by injuring a class that New York protects “violates basic due process and equal protection principles.  [Thus] DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of marriage.” 

The imposition by DOMA of  “a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. . . [with the] purpose . . . to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted” was therefore held unconstitutional.  Furthermore, Justice Kennedy said: 

DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund.  Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits. 

DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law. [It] touches many aspects of married and family life, from the mundane to the profound.  It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive . . . [and] deprives them of the Bankruptcy Code’s special protections for domestic-support obligations [forcing] them to follow a complicated procedure to file their state and federal taxes jointly. 

DOMA also brings financial harm to children of same-sex couples.  It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses . . . . [denying or reducing] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. 

[T]he principal purpose and the necessary effect of [DOMA] are to demean those [people] who are in a lawful same-sex marriage. . . . [Thus] DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution [and is invalid . . . 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….  [Its] opinion and its holdings are confined to those lawful marriages. 

He pointed out that both the definition of marriage and the right to marry are traditionally state functions and not an enumerated power of Congress.  Since DOMA inhibits these state powers, he claimed DOMA’s rationality could not survive the doctrine of heightened scrutiny.  Then, he detailed the unsound purposes of DOMA, such as its bringing harm to a group, saying this may not justify a law mandating the latter’s disparate treatment.   

He also explained DOMA’s infringement on federalism, by seeking to “influence and interfere with” the decisions of states to permit same-sex marriage, as well as in restricting freedom of same-sex couples in those states where same-sex marriage is legal.  He then said that DOMA’s barring a surviving spouse from claiming the federal estate tax marital deduction violated the Fifth Amendment’s provisions concerning deprivation of liberty without due process of law.[51]  He stated DOMA forces same-sex couples to live as married people, for purposes of state law, but as unmarried ones for purposes of federal law.          

Justice Scalia dissented, as did Chief Justice Roberts.  The latter’s dissent agreed with Scalia’s point that the Court lacked jurisdiction to review the decisions.  He believed DOMA’s constitutionality was not properly before the Court.  Justice Scalia’s dissent was joined in by Justice Thomas, while Justice Alito filed a separate dissent.   

Until the Windsor[52] case, neither the federal estate tax marital deduction nor the filing of joint federal income tax returns by a same-sex couple was allowed in any jurisdiction that permitted same-sex marriage, since DOMA forbade it. 

The other major June 26, 2013, U.S. Supreme Court decision was Hollingsworth et al v. Perry et al.[53]  A California Federal District Court had held California’s Proposition 8, which amended its Constitution to define marriage “as a union between a man and a woman,” was unconstitutional.  It enjoined the defendants (named public officials) from enforcing it.  Although these officials decided not to appeal, petitioners appealed. 

The Ninth Circuit had concluded that California law gave petitioners the authority to assert the State’s interest in defending the initiative’s constitutionality, when its public officials had refused.  Thus, that court affirmed the California federal court’s order allowing petitioners to defend Proposition 8’s initiative.         

However, the U.S. Supreme Court held petitioners had no standing to appeal the District Court order.  Since it refused to review the Ninth Circuit’s opinion, it returned the case to California’s federal district court.  This had held California’s Proposition 8’s amendment to the California Constitution banning same-sex marriage was unconstitutional. Thus, Chief Justice Roberts, writing the Court’s opinion, stated that appellants, as intervening petitioners, had no standing to appeal California’s federal district court’s order declaring Proposition 8 unconstitutional.  Same-sex marriage resumed in California the next day, June 27, 2013.          

The parties had not contested respondents’ standing to initiate the case against California officials responsible for enforcing Proposition 8.  Thus, the Supreme Court held that once the District Court issued its order, respondents no longer had any injury to redress and the state officials chose not to appeal. 

Instead, petitioners had intervened California’s federal district court.  Their only interest was vindication of the constitutional validity of a generally applicable California law.  However, the U.S. Supreme Court held this “generalized grievance” was insufficient to confer standing to intervene on them.  Since Proposition 8 was an amendment to the California Constitution, petitioners had no role to enforce it and thus had no personal stake in defending its enforcement.         

The Supreme Court did not question California’s right to maintain the initiative process, nor the right of its proponents to defend it in California’s courts.  But it held standing in federal courts is a federal and not a state law question.  Thus, states cannot alter the U.S. Constitution’s Article III requirement that a party invoking federal court jurisdiction do so for relief from a personal, particularized injury.         

Since the California Federal District Court had declared California’s Proposition 8 unconstitutional and enjoined California officials from enforcing it, respondents no longer had any injury to redress and state officials had chosen not to appeal.  Thus, petitioners-respondents, who had intervened in the District Court, sought to appeal.  But, without any direct stake in their appeal’s outcome, their only interest was having the District Court order reversed to vindicate the constitutional validity of a generally applicable California law.

Petitioners asserted that even if they have no cognizable interest in appealing the District Court’s order, California had one.  Thus, they argued that they could assert that interest on its behalf.  But, since they held no office and solely participated in the litigation as private parties, their generalized grievance was considered insufficient to confer standing.         

The federal Ninth Circuit court, below, had merely asked the California Supreme Court whether petitioners had “the authority to assert the State’s interest in the initiative’s validity.”  Thus, the California Supreme Court’s decision only stood for that, insofar as California was concerned.  While petitioners could argue in defense of Proposition 8, they did not thereby “become de facto public officials.”  Their generalized interest kept them from having any standing.  Nor were they agents of the State of California.  Their claim was inconsistent with their argument to intervene in the federal District Court with the unique legal status as official proponents.  Thus, they were not in any agency relationship with the people of California.  But, petitioners claimed they had a significantly protectable interest in preventing that court from undoing all had been accomplished in enacting California’s Proposition 8. 

Chief Justice Roberts delivered the opinion in the Perry[54] case, joined by Justices Scalia, Ginsburg, Breyer and Kagan.  He held that “the most basic features of an agency relationship . . . [to be] missing, since there was no right to control their actions, arguments, nor had they been elected nor could they be removed.  Furthermore, they owed no fiduciary obligation to the California people and thus could “pursue a clearly ideological commitment to the law’s constitutionality. . .”  

The Court held that since petitioners were not agents of the state of California, they were without standing to bring suit to defend the constitutionality of a state statute whose state officials chose not to defend it.  Thus, the Court had no authority to decide the case on its merits, nor did the Ninth Circuit.  

Since the latter was held to be without jurisdiction to consider the appeal, its judgment was vacated.  However, California’s Proposition 8, making celebration of same-sex marriage illegal in California after November 8, 2008, was declared unconstitutional by the U.S. Supreme Court in its Perry[55] decision.  The case was remanded to the California federal district court, with instructions to dismiss the appeal for lack of jurisdiction. 

Justices Kennedy, Thomas, Alito and Sotomayor dissented, disagreeing that the absence of a formal delegation of authority precluded the case.  They argued that there was both standing to sue and adversity.  These complied with the “requisites to a justiciability under Article III of the U.S. Constitution.”[56] 

Justice Kennedy wrote a separate dissent, disagreeing with the Court’s opinion that the state had to follow the Restatement of Agency.  He criticized the court’s nullification of the California Supreme Court’s decision and held state law authorizes proponents of an enacted initiative to defend it, if and when the state’s usual legal advocates decline to do so. 

Two questions raised by the Supreme Court’s two DOMA cases are:  (1) whether the U.S. Code’s definition of marriage[57] is the only statute defining “marriage” and (2) could the federal government adopt a policy that a marriage valid in one state will be recognized for federal law purposes, whether or not it is recognized by the domiciliary state?  This seems within the power of the president and appears consistent with the Obama administration’s views. 

Inasmuch as part of DOMA had been declared unconstitutional by the U.S. Supreme Court in the Windsor[58] case, same-sex marriage resumed in California, based both on Windsor[59] and Hollingsworth v. Perry.[60]

B. Developments Since the Supreme Court Overturned DOMA 

On June 27, 2013, the Supreme Court declined to take up two other gay marriage cases.  One concerned a Nevada constitutional amendment only recognizing opposite-sex marriage. The other involved an Arizona law denying that state’s benefits to domestic partners. 

On July 15, 2013, California’s Supreme Court refused to order California to stop immediately issuing marriage licenses to same-sex couples.  Nonetheless, that court still plans to consider whether California’s governor and attorney general correctly instructed county clerks that a voter-approved ban on same-sex marriage was now invalid throughout the state.         

The court denied a request by backers of the ban for an emergency order requiring California to keep enforcing Proposition 8, while a last-ditch legal effort was made to preserve it.  the backers still plan to consider separately whether California’s lower court ruling invalidating the ban with a companion mandate prohibiting the state from enforcing it, applied statewide or only in Los Angeles and Alameda counties.  Those counties are where the two couples who sued to invalidate Proposition 8 lived.         

Attorneys representing the sponsors of Proposition 8 also argued that because the U.S. Supreme Court did not rule directly on its constitutionality, state officials are bound by state law to abide by that measure.  California’s Supreme Court asked for additional written arguments on those issues by August 1, 2013.   Then, on August 14, 2013, California’s Supreme Court refused to stop same-sex weddings, thus dealing a blow to gay marriage opponents.  They then tried to regroup.[61] 

A federal judge in Detroit, relying partly on Windsor,[62] temporarily struck down a Michigan law denying domestic benefits for gay and other unmarried couples.  Days later, still a another Detroit federal judge cited Windsor[63] to allowing a lawsuit challenging Michigan’s ban on same-sex marriage to move forward, over the state’s objections. 

Since these rulings came during the preliminary stages of cases, they may not lead to state laws being upended.  But they show how the Supreme Court’s decision could quickly reshape state law on same-sex marriage, even though it only addressed a single part of a federal statute. 

Because little difference exists between California’s same-sex marriage ban and Oregon’s statute, it is likely that Oregon’s may also be unconstitutional.  Presently, legalization of same-sex marriage in Oregon is being pushed through a ballot initiative.  A signature drive for its repeal began on July 20, 2013.  However, over 116,000 signatures will be needed by the first week of July 2014, to place a same-sex marriage measure on Oregon’s 2014 ballot, so as to give its electorate an opportunity to reverse that state’s ban. 

C. Revision of I.R.S. Guidance and Discussion of Other Federal Rules and Lower Court Cases 

Shortly after the U.S. Supreme Court struck down Section 2 of the Defense of Marriage Act (DOMA), the I.R.S. announced on its website that it intends to revise its guidance to reflect the decision.  Other federal agencies are beginning the process of revising their rules and regulations since DOMA. 

On June 28, 2013 and in early July 2013, communications to federal employees from the Office of Personnel Management (OPM) described how the Supreme Court’s decision will impact some benefits. OPM explained that all legally married same-sex spouses will now be eligible family members for health insurance purposes.  

Children of same-sex marriages will be treated the same as those of opposite-sex ones and thus will be eligible family members, according to the same eligibility guidelines.  This includes coverage for children of same-sex spouses as stepchildren, OPM explained.  Dental and vision insurance benefits will also be available to all legally married same-sex spouses.  Employees who are in legal same-sex marriages will be able to submit claims for medical expenses for their same-sex spouse and any newly qualifying (step) children to their flexible spending account.  Same-sex couples in a civil union or other forms of domestic partnership other than marriage will remain ineligible for most federal benefits programs, OPM explained.         

Judges in lower courts are citing and even building on the Windsor case[64] in controversies over state laws concerning same-sex marriage and other issues affecting gays and lesbians.  Thus, a federal judge in Cincinnati cited Windsor[65] when he held Ohio’s 2004 law, banning recognition of same-sex marriages from other states, “likely” to be unconstitutional, at least in affecting the couple bringing the suit. 

A Missouri case dealt with the question as to whether gays and lesbians should be entitled to survivors’ benefits.  A July 2013 Ohio ruling involved two men, one of whom, John Arthur, according to court papers, was dying of amyotrophic lateral sclerosis (Lou Gehrig’s disease).  The couple had married in Maryland.  Upon their return to Ohio, they sued the latter to recognize their marriage.  Thus, the dying one of them would then be considered “married” at the time of his death, making the other person his surviving spouse.  Judge Timothy Black, cited Windsor[66] extensively and then ruled that Ohio’s “scheme has unjustifiably created two tiers of couples.”  Thus, it was likely unconstitutional, at least in regard to the plaintiffs. 

Kelly Glossip sued Ohio[67] in 2010 to recover survivor’s benefits after his longtime partner, a state highway patrolman, was killed in 2009.  Mr. Glossip lost at trial court, and appealed to the Ohio Supreme Court.  “Windsor and its progeny [his lawyers wrote in a July 2013 brief, support] the conclusion that the Court should” review the constitutionality of state survivor-benefit laws with heightened skepticism.  In a brief submitted to the court in late July 2013, Ohio argued that Windsor[68] did not take away Missouri’s right to define marriage as it sees fit.  “Rather, the decision affirms the ‘power’ of the state in defining the marital relation.”[69] 

Instead of finding ways around Windsor,[70] David Cruz, a law professor at the University of Southern California, said “judges are embracing its principles.”  Meanwhile, same-sex marriage backers targeted New Jersey and Oregon to obtain its legality there.  Polls show significant support for lifting restrictions on same-sex marriage.  More than a dozen challenges to same-sex marriage laws are pending. 

Many employers are revisiting their benefit plans since the DOMA cases. “Among the issues that will need to be addressed further include how quickly these plans will need to act as a result of the Supreme Court’s decisions and the best methods for implementing these changes,” President Scott Macey, of The ERISA Industry Committee, Washington, DC., told CCH.  “Employers clearly will want to review their current plans and policies with respect to same-sex spouses to determine whether they are in compliance with applicable post-decision rules, determine what actions need to be taken, and what areas might need further clarification from the federal government or the courts.”         

One federal agency (the U.S. Department of Homeland Security) is looking at the place of celebration of a marriage as an approach for immigration law purposes.  The I.R.S. has not indicated if it will look to the law of the state where a same-sex couple was married (their place of celebration of marriage) or that of their state of residence for purposes of federal taxation.  Seventeen states[71] and the District of Columbia recognized same-sex marriage (as of May 1, 2014).  The other 33 states, Puerto Rico and American Samoa do not.

D.  I.R.S. Guidance Needed 

President Obama has directed the IRS and other federal agencies to revise their regulations to reflect the Windsor[72] decision as soon as possible.[73]    Thus, guidance from the I.R.S. is needed about the effective date for applying the Windsor case’s holding to federal tax law.[74]  Same-sex married couples who were not considered married under federal tax law prior to that decision are presumably now considered married as of its date (June 26, 2013). 

Several other questions to be considered are whether: 

1. Someone with more than one wife (for example, an Arab) could obtain a marital deduction for bequests to his two or more wives?[75] 

2. If a person could marry several people, as permitted in some Arab and other countries, would the United States be required to recognize these marriages?  

3. Would applicable marriage law have to be gender neutral?[76]  Polyandry, evidently permitted at least in Mongolia, but not in Islamic countries, involves a woman who marries several men.   Such a marriage, in a country permitting it would not be valid in the U.S., since it would be unconstitutional by U.S. standards.  Even if men could have several wives, this apparently would not permit same-sex polygamy.[77] 

Shortly after the U.S. Supreme Court struck down DOMA’s section 2, the IRS website  announced that it intended to revise its guidance to reflect that decision.[78]  Revenue Ruling 2013-17, carries out the U.S. Supreme Court’s Windsor decision by providing that same-sex couples will be considered married for federal income, estate and gift tax purposes.  Thus, any same-sex marriage legally entered into in one of the  17 states allowing same-sex marriages, the District of Columbia, or a foreign country is covered by this ruling.  

The IRS also dealt with the effective date for applying Windsor[79] to federal tax law.  Same-sex married couples who were not considered married under federal tax law prior to that decision are now considered married as of its date, June 26, 2013.  But, this retroactive effective date raises at least six federal tax issues: 

1. Are they considered married retroactive to the date of their marriage, pursuant to state law?  

2. Since the general statute of limitations period for amending a return is the later of  three years from its filing date or two years from the date taxes are paid, should same-sex couples now file amended income tax returns for open years to claim joint return status, if this is beneficial for them? 

3. Should surviving spouses of same-sex couples file amended estate and gift tax returns to take advantage of the marital deduction, portability of the deceased spousal unused exclusion amount and the election to split gifts? 

4. Are same-sex couples now required to amend past years’ returns as joint ones, even if they obtained better tax results by filing as single taxpayers? 

5. Will the IRS consider the Supreme Court’s decision in determining marital status when auditing prior year returns? 

6. Prior to Windsor,[80] many same-sex couples, anticipating its favorable ruling from the U.S. Supreme Court, had already filed protective claims for refund.  If any were filed, same-sex couples and their advisors should move to finalize them.  Practitioners should be alert for any forthcoming IRS guidance that may facilitate the processing of protective refund claims and other issues related to same-sex couples.  

Questions concerning the validity of marriages where celebrated, without regard to what a state does, should not offend the notion of federalism.  It affects and but does not override state law.  Thus, this should be an added benefit providing clarity about federal law, based on an argument that the U.S. Constitution’s equal protection clause[81] requires it.         

Could the federal marital deduction be claimed where one spouse dies in a state not recognizing a same-sex marriage?  Presumably, the executor should try to claim it, if necessary even by applying for a Private Letter Ruling to ascertain the I.R.S.’s position.  However, it might be difficult to get the ruling before any tax is due, unless and until the I.R.S. has a plan to deal with this problem.[82] 

E. Constitutionality of DOMA’s Section 2[83] 

Section 2 of DOMA probably would not survive a constitutional challenge under full faith and credit grounds.[84]  By stating that states are not required to recognize a same sex marriage from another jurisdiction, it is working in just the opposite way.  The irony is that section 2 is not needed. 

The Supreme Court has recognized a “public policy” exception to the full faith and credit clause, in that if giving credence to a judgment or order from another state would be a violation of that state’s public policy, it is not required to give that judgment or the order full faith and credit.  

This argument is one that states, such as Florida and Texas, could use to uphold their statutes against same-sex marriage and their amendments to their state constitutions not to recognize same-sex marriage.  Thus, unless a court overrules these provisions, “the tribe has spoken” as to what the public thinks in those states.[85]  This applies even without DOMA’s Sec. 2.  Ohio has gone so far as to include a “public policy” argument in its non-recognition statute. 

Therefore, what appears to be one issue about same-sex marriage is actually two.  The first is the prohibition against same-sex marriages while the second one is the recognition of another jurisdiction’s same-sex marriage.[86]   

Thus, citing the Fourteenth Amendment[87] inclines towards the first issue; namely conduct of the marriage ceremony.  Had the U.S. Supreme Court ruled on the merits of the Perry[88] case, based on its briefs and (especially) on its oral arguments, then the states’ DOMA’s would have fallen by the same 5-4 majority decision as in Windsor.[89]  This will affect pending lawsuits in several states, including Michigan, New Jersey and Pennsylvania.  

Does Perry[90] present a blue-print for non-recognition states, thus preventing an ultimate judicial determination because if a state wins in a trial court, then does that state have to appeal?  If no appeal occurs in the pending suits, the proper parties will not be in an appeals court.  Thus, the standing issues in Perry[91] should prevent ultimate adjudication on the merits.  However, some trial lawyers believe this may be circumvented through a class action.  In any case, the recognition issue is based solely a full faith and credit argument, resting on a state’s public policy.[92] 

A same-sex married couple residing in a state recognizing same sex marriages should be eligible for social security benefits.  But if they reside in a state not recognizing same sex marriages, their social security benefit application is being put on hold.  The Social Security Administration is limiting payment of claims for same-sex married couples currently to those couples who were married in a state the allows same-sex couples to marry and are “domiciled” or live, in a state that recognizes same-sex couples’ marriages. 

Thus, claims from same-sex couples who married in a jurisdiction where same-sex marriage was legal but now live in a state not recognizing their marriages will have their applications put on hold for the time being. 

As of August 9, 2012, a new section for Windsor Same-Sex Marriage Claims, named after United States v. Windsor[93] (which struck down part of DOMA), was added to the Social Security Administration’s Program Operations Manual System.[94]  This is described as the primary source of information used by employees to process claims for Social Security benefits.  These claims processing instructions “allow for payment of claims” when the claimant “was married in a state that permits same-sex marriage [and] is domiciled at the time of application, in a state that recognizes same-sex marriage or while the claim is pending a final determination.”[95] 

In Obergefell v. Kasich,[96] Ohio was not allowed to refuse recognition of the validity of a same-sex marriage entered into in Maryland, where these marriages are permitted.  Since Ohio treated other marriages as valid, if they were valid where entered into, even if they would not have been valid if entered into in Ohio, it would violate the Fourteenth Amendment’s, Equal Protection Clause[97] to treat same-sex marriages differently.  This was despite the provisions in Ohio statutory rules and the Ohio Constitution that prohibit such unions and their recognition.[98]  The Ohio court clearly addressed the full faith and credit and “public policy”  argument before turning to equal protection.  

Throughout Ohio's history, Ohio law has been clear that a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized.  For example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio does not authorize marriages between first cousins.   Furthermore, out of state marriages of minors are recognized by Ohio, even though Ohio does not authorize marriages of minors.  In view of the Ohio law’s history, Ohio cannot, at least not under the above circumstances, single out same sex marriages as those it will not recognize.[99] 

F. Establishing Jurisdiction by a Defendant’s Appearance in Court 

Almost any kind of appearance by a defendant in a sister-state court establishes the latter’s jurisdiction over the defendant for full faith and credit purposes.  When parties to a same-sex marriage in one state seek its recognition in another state’s court, the latter would be required not only to recognize it, but also to determine if the sister-state had the requisite jurisdiction to celebrate it.  Thus, if the defendant appeared in the action, both the jurisdictional issue and the merits would be foreclosed from further investigation.  However, this is not the case where a judgment is rendered by another country’s court or for an act (such as a marriage) pursuant to the latter’s law.  

G. Recognition of Foreign Laws Under the Doctrine of Comity 

In suits arising in the United States by couples married under the laws of a country permitting same-sex marriage, recognition of their marriage will be urged under principles of comity.  Absent a treaty, a state may determine whether to recognize a foreign court’s judgment, including the right to look into the question of the foreign court’s jurisdiction.  Furthermore, it does not whether the defendant appeared in the action or even contested jurisdiction and the applicable law is that of the place of celebration of a marriage, not the law of the parties’ domicile.  Therefore, a marriage valid under the law of the state where celebrated will be recognized as valid wherever it does not violate local public policy. 

H.  Parental Rights         

While a growing number of state courts now recognize parental rights of one same-sex partner whose other partner adopts or conceives a child through artificial insemination, potential conflicts of law problems exist in same-sex relationships between most state DOMAs and the laws of those states recognizing same-sex marriages.  They also exist between states permitting civil unions and domestic partnerships designated beneficiary or reciprocal beneficiary agreements.  Thus, conflicts over child custody, due to differences in state laws may develop.  

Furthermore, any conflict between DOMA and the Internal Revenue Code should now be resolved in favor of the code, inasmuch as DOMA’s section 3 was held unconstitutional in Windsor v. United States. [100] 

I. Tax Returns 

DOMA[101] does not permit a same-sex married couple to file a joint federal income tax return, nor is the survivor allowed a federal estate tax marital deduction.  This was true even in those jurisdictions permitting same-sex marriage.  However, since Windsor[102] held section 3 of DOMA  unconsti

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