Wednesday, March 27, 2013

What is at Stake in SCOTUS Decision on Defense of Marriage Act?

The Rights Denied to Same-Sex Marriage Partners Under the Defense of Marriage Act ("DOMA")

Today, the U.S. Supreme Court ("SCOTUS") heard argument on the legality of DOMA.  To quote an article posted today on, the rights at stake in this case are as follows:

"Under the law, federal tax, Social Security, pension and bankruptcy benefits, along with family medical leave protections and other provisions do not apply to gay and lesbian couples legally married in states that recognize such unions."

Let me break down some of these key issues.

Under DOMA, Same-Sex Marriage Partners Are Not Covered Under the Family and Medical Leave Act

One of the key benefits under FMLA is the right to take leave to care for a spouse who has a physical injury or illness.  Under DOMA, same-sex marriages are not recognized, so a spouse in a same-sex marriage is not entitled to leave under FMLA to care for his/her spouse.

Under DOMA, Same-Sex Partners Are Not Entitled to Social Security Benefits Accrued by Their Spouse in the Event of the Death of Their Spouse

Under the Social Scurity Act ("SSA") if a spouse dies, the other spouse is entitled to Social Security benefits that were earned by his/her spouse prior to death.  Under DOMA, they get nothing.

Under the SSA, the amount of benefits to which a disabled citizen is entitled increases if the worker is married, has a family, etc.  Under DOMA, no increase is afforded, because a spouse in a same-sex marriage is not recognized as married.

The same principles apply to federal employees who have accrued pension and death benefits in the course and scope of their employment.

Married - Filing Jointly - uh, No
Under DOMA, a Same-Sex Couple May Not File Taxes Jointly

Our tax code provides for lower tax rates/obligations for a married couple as opposed to someone filing as single.  This benefit was meant to encourage the creation and maintenance of the marriage institution. 

Under DOMA, a same-sex married couple is not recognized as married, and therefore may not file a joint tax return as a married couple. 

My Forecast (For What It's Worth!)

SCOTUS:  Will Kennedy Be Swing Vote?

My prediction?  SCOTUS will throw out DOMA.  Does that mean that same-sex married couples will automatically be afforded the rights discussed herein?  I am not an expert in this area, but my answer to this question is - "Sometimes."

My guess is that same-sex couples married in one of the 9 states that sanction such marriages (plus D.C.) will be entitled to such benefits.  However, for couples who have "Common Law Marriages" (i.e. who have lived together for X years and held themselves out to be married, but do not have actual state-sanctioned marriage certificates), the answer will be - "No federal benefits."

Click Here to read our analysis of the Scotus consideration of the constitutionality of California's Proposition 8, which bans same-sex marriage.  Argument on that case was heard on March 26, 2013.

Decisions on both DOMA and Proposition 8 will likely be issued together by SCOTUS within the next 3 months or so.

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