Defense of Marriage Act
“I have to think the justices — and especially the chief — are very cognizant of the shifting public opinion,” said Carl Tobias, a law professor at the University of Richmond.
Before U.S. lawmakers decide whether they will address same-sex couples in a comprehensive immigration overhaul bill, the Supreme Court could make the decision for them.
The high court faces a choice this month to uphold or strike down all or parts of the federal Defense of Marriage Act’s definition of marriage as being between a man and a woman. If DOMA is struck down, gay marriage advocates will view it as an unambiguously positive outcome for their cause because, in part, it also resolves the question of whether the immigration law can apply to same-sex couples.
“For the first time in immigration equality’s history, our legal team is now assisting couples in preparing their green card applications,” said Steve Ralls, the communications director at the advocacy group Immigration Equality. “We’re definitely preparing couples. The court ruling and the backup plan of congressional legislation make us confident more so than at any other time.”
But a court decision has its downsides as well. Although the Obama administration is likely to implement the court’s decision in a way favorable to gay marriage advocates, a future administration might not.
If DOMA is upheld or if the court’s ruling on the constitutionality of a federal definition of marriage is less clear, the result could be continued legal uncertainty for gay couples. One way Democrats in the Senate and gay marriage advocates have hoped to resolve this is by attaching an amendment to the immigration bill that would give same-sex couples the same benefits as heterosexual couples under the immigration law.
But Democrats face an uphill struggle in Congress where Republicans have staunchly opposed the inclusion of a same-sex marriage amendment in the immigration bill. A principal Republican sponsor of the legislation, Sen. Marco Rubio, R-Fla., said Thursday he would walk away from his own immigration bill if a same-sex marriage amendment is included.
With the court’s final decision fast approaching, here are some ways the issue could shake out:
There are currently 12 states, and the District of Columbia currently that allow same sex marriage. The Supreme Court decision will soon be made with Proposition 8, and DOMA. It is time to refocus to many advantages gay marriage would have, and the pursuit of marriage equality.
There are at least seven ways in which the legalization of gay marriage is beneficial for LGBTQ Americans and the United States of America.
Gay Marriage Promotes Equality and Non-Discrimination in Society
Millions of LGBTQ contribute daily to American life in a multitude of ways culturally, socially, financially, politically, vocationally, and spiritually. We are fundamental to this nation’s continued growth and evolution, the U.S.A. would suffer greatly from the withdrawal of our many contributions. The legalization of same-sex marriage affirms the inherent worthiness of LGBTQ people as valued American citizens deserving of equal rights under the law.
Six months after Maryland, Maine and Washington voters endorsed same-sex marriage at the ballot box, two more states have adopted laws allowing gay couples to marry, and a third is poised to join them. On Tuesday, lawmakers in Delaware adopted a same-sex marriage law, and Minnesota’s House of Representatives passed a marriage equality measure there today, setting up a final vote in the Senate on Monday. Last week the Rhode Island legislature adopted a similar measure. That three states have moved to legalize gay marriage over the span of less than a month shows how quickly public attitudes toward same-sex unions are changing. Still, more progress may be difficult until more Republicans start to see the issue as one of civil rights, equal protection under the law and individual liberty.
Polls show that nearly 60 percent of Americans now believe gay marriage should be legal, up from less than 40 percent only a decade ago. Among young people, about 8 in 10 think gay couples should be allowed to marry, a trend that clearly favors wider acceptance of such unions in the future. The evolution of public opinion on same-sex marriage is in line with a broader movement toward recognition of gay rights that has manifested itself over the last year in spheres as varied as the Boy Scouts, professional sports teams and the military.
The Supreme Court is currently considering two cases related to same-sex marriage, one that could establish it as a right under the Constitution and another that could overturn the Defense of Marriage Act, which bans federal recognition of same-sex marriages. During oral arguments, the justices signaled varying degrees of discomfort with making a sweeping ruling in either case, but as the political battle over rights for gays tilts toward equality in state after state, such caution appears increasingly out of touch.
Currently, the Internal Revenue Code of 1986, as amended (the Code), precludes same-sex spouses from receiving certain health benefits enjoyed by their opposite-sex counterparts on a tax-free basis. Consequently, employers must impute the value of employer-paid healthcare provided to an employee’s nondependent same-sex spouse as additional income to an employee. Employees are subject to payroll taxes on this imputed income, commonly referred to as Federal Insurance Contributions Act (FICA) taxes, at the current rate of 7.65%, as well as federal and state income taxes. Employers are also subject to corresponding FICA payroll tax costs associated with this imputed income, at the same current rate of 7.65%. If the U.S. Supreme Court holds that section 3 of DOMA is unconstitutional, it would appear that same-sex spouses would be eligible for certain tax-free employer-paid health benefits and, as a result, employers may be entitled to a refund of their share of any FICA taxes paid and employees may be entitled to a refund of their share of both FICA taxes and income taxes.
As April 15, 2013 is the deadline for filing a protective refund claim for 2009 calendar year taxpayers, employers may want to consider filing protective FICA tax-refund claims for all open payroll tax periods to cover the FICA taxes paid on this imputed income. While a ruling on the constitutionality of DOMA may not be issued until the end of June 2013, a protective refund claim simply preserves the right to a refund and extends the statute of limitations for a minimum of two years. Similar to FICA refund claims that have been filed for employers as a result of the United States v. Quality Stores, Inc. decision, which held that severance payments paid to former employees pursuant to an involuntary reduction in force are not taxable “wages” for FICA tax purposes, the process for filing a protective claim is simple.
The decision to file for a refund will depend upon the extent to which an employer has had to impute income to employees with same-sex partners. In many instances, employers may have insufficient imputed income at issue to warrant spending the resources needed to file a FICA refund claim. Employers may also want to consider informing affected employees that they can file a protective refund claim for 2009
Section 3 of the Defense of Marriage Act (DOMA) states, “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
This 65-word paragraph is the eye of deliberation in Washington, D.C., where the Supreme Court is expected to rule on its constitutionality. The court’s ruling could impact lesbian, gay, bisexual and transgender (LGBT) couples in the United States in ways heterosexuals may not have realized, such as changing how married same-sex couples receive employee benefits. Currently, nine states and the District of Columbia legally recognize same-sex marriage, plus there are other states that recognize what Todd Solomon, an employment benefits lawyer with the Chicago-based law firm McDermott Will & Emery LLP calls a “spousal equivalent:” a domestic partner or civil union. Couples in those states are still not recognized as married in some other jurisdictions, nor are they recognized as legally married by the federal government, which means they are currently only eligible for state rights that relate to married couples.
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In addition to weighing in on the constitutionality of DOMA, the court is also expected to rule on the legality of Proposition 8, a state constitutional amendment that bans gay marriage in California. It’s the outcome of the DOMA case, however, that will create the most ripples: By overturning sections 2 and 3 of the act, the Supreme Court could spawn a floodgate of possibilities for same-sex married couples and make them eligible for more than 1,000 federal rights and benefits related to marriage.
Right now it’s guesswork to determine the full weight of the impending ruling on workplace benefits. Here are just three things at stake: