After DOMA, 36 States Will Have Little Choice On Gay Marriage

Opponents of same-sex marriage are bracing themselves for a veritable tidal wave of new legal challenges to laws in 36 states that do not recognize the marriages of gay and lesbian couples. Emboldened by the Supreme Court’s decision striking down key parts of the Defense of Marriage Act (DOMA) — a federal law restricting government marriage benefits to heterosexual couples — lawyers for the LGBT community are citing the court’s majority opinion as a legal basis for throwing out similar laws on the state level.

Leading the charge is the American Civil Liberties Union (ACLU), which has filed suits inPennsylvania and North Carolina, and has plans to file a suit in Virginia as well. Unlike previous marriage equality lawsuits alleging violations of an specific state’s constitution, and culminating in the supreme court of that state, these suits allege violations of the United States Constitution, meaning that they could eventually make their way to the Supreme Court of the United States. This is a big deal. By opening up the floodgates for federal litigation against state marriage laws, the DOMA decision puts considerable pressure on the states to enact legal reforms — or face the strong possibility that reforms would be imposed upon them by the Supreme Court itself — making the prospect of national marriage equality greater now than ever before.

Anyone who has followed the DOMA case has heard by now that the ruling will have far-reaching implications, but most of us aren’t quite why that is, legally speaking. The ruling, which mandates that all officially recognized marriages be treated equally under the law, has immediate legal ramifications for only the 12 states that already allow same-sex marriages. Then there’s this: The Supreme Court ruled part of DOMA unconstitutional for violating the Fifth Amendment, but the ACLU and others are citing the decision as grounds to do away with similar laws, in the states, for violating the Fourteenth Amendment. How does proving that a federal law violates one part of the constitution help prove that a state law violates a different part of the constitution?


via After DOMA, 36 States Will Have Little Choice On Gay Marriage.

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Justice Scalia Is Not Happy About The Decision – Forbes

My fellow Son of Xavier, Antonin Scalia, did not like the majority decision one little bit:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms.

A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

I thought Justice Scalia might have already thrown in the towel, since in his dissent in Lawrence v Texas, he more or less said that if we can’t prosecute them for sodomy, we might just as well let them get married:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.


I don’t know about the sterile, but personally, I think it would be a good idea if the elderly were not allowed to marry, but that’s just me as I’m getting elderly.

via DOMA Unconstitutional – Scalia Unhappy – Let’s Get Practical – Forbes.

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Larabee: DOMA ruling grounded in Constitution | The Salt Lake Tribune

“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.” — U.S. Supreme Court Justice Anthony Kennedy

via Larabee: DOMA ruling grounded in Constitution | The Salt Lake Tribune.

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Court watchers: Opinion shift on gay marriage hard for justices to ignore – The Hill – covering Congress, Politics, Political Campaigns and Capitol Hill |

The dramatic shift in public opinion on same-sex marriage is likely to affect the Supreme Court’s historic rulings on the issue later this month, say legal scholars.

The justices often say they do not worry at all about politics or public opinion, and simply do what they believe the law compels them to.

But it will be hard if not impossible for them ignore the enormous transformation in opinion on same sex marriage, court watchers say, especially with two cases that offer them flexibility in how to rule.

“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.

The justices aren’t driven by polling the way elected lawmakers are, but they are often mindful of the court’s credibility. Chief Justice John Roberts, in particular, has shown himself to be an “institutionalist” who wants to protect the court’s legitimacy, Tobias said. That was clear in last year’s decision on ObamaCare.

The political pressures facing the court on same-sex marriage are blowing from several directions, however, making it uncertain exactly how the court will rule.

“I don’t think you can say confidently which way it cuts,” said Tom Goldstein, a Supreme Court attorney and the founder of SCOTUSBlog.

via Court watchers: Opinion shift on gay marriage hard for justices to ignore – The Hill – covering Congress, Politics, Political Campaigns and Capitol Hill |

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Supreme Court DOMA Ruling Looms Over Immigration Overhaul – ABC News

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:


via Supreme Court DOMA Ruling Looms Over Immigration Overhaul – ABC News.

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7 Reasons DOMA & Prop 8 need to be stopped – TGV News

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.

via 7 Reasons DOMA & Prop 8 need to be stopped – TGV News.

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Employer Tax Considerations for Supreme Court’s Pending Defense of Marriage Act (DOMA) Decision | The National Law Review


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.

Key Considerations

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,[1] 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

via Employer Tax Considerations for Supreme Court’s Pending Defense of Marriage Act (DOMA) Decision | The National Law Review.

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The Fate of DOMA and What’s at Stake With Employee Benefits – US News and World Report

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.

[See: The 25 Best Jobs of 2013.]

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:

The Fate of DOMA and What’s at Stake With Employee Benefits – US News and World Report.

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Hesitant about marriage equality, Supreme Court? Follow the millennials’ lead — MSNBC

In the coming months, as the Court deliberates legal questions of standing and scope of rights, millennials are asking a broader question: will the Court support our most basic understanding of equality under the law, or saddle us with the task of securing a right that nearly all of us, gay and straight, already understand as fundamental?

Like many straight millennials, my support for marriage equality formed over time. I grew up in a household that viewed homosexuality as an aberration and disease. When my best friend’s older brother came out as gay, I was confused. I knew he wasn’t a bad person, but I also was too afraid of the stigma to talk to him about it. Still, it was difficult to feel disgust for someone I knew and admired.

When I went to college, my world opened up, old beliefs fell away, and I found myself with friends of different faiths, colors, and orientations. These friendships began to change the minds of people in my family too. But I did not become an advocate for equality until after September 11th. In the aftermath of the terrorist attacks, I witnessed my Sikh community, many of whom wear turbans as a religious observance, targeted in hate crimes. For the next decade, I worked on films and campaigns against discrimination alongside my college friend J. Her race and sexual orientation were different from mine, but I wouldn’t understand what role this played in our work until a few years later.

via Hesitant about marriage equality, Supreme Court? Follow the millennials’ lead — MSNBC.

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13 key moments in the Supreme Court argument over gay marriage – U.S. News

2. Justice Sonia Sotomayor asks about gays, discrimination and marriage.

Sotomayor: “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?”

Cooper: “Your Honor, I cannot. I do not have any — anything to offer you in that regard.”


via 13 key moments in the Supreme Court argument over gay marriage – U.S. News.

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