LGBT organizations see challenges post-DOMA

Despite the court's decisions, same-sex marriages remain unavailable in some 38 states. (AP Photo/Jason DeCrow) Despite the court's decisions, same-sex marriages remain unavailable in some 38 states. (AP Photo/Jason DeCrow)

Organizations representing the gay and lesbian communities lauded the U.S. Supreme Court's two rulings Wednesday--one striking down provisions of the Defense of Marriage Act (DOMA) and the other upholding the right of gay couples to marry in California. But advocates also warned that the decisions may complicate planning for same-sex couples and their advisors because of the existing patchwork of state bans on same-sex marriages.

Wednesday’s 5-to-4 ruling on DOMA, written by Justice Anthony Kennedy, noted that “The Constitution’s guarantee of equality...cannot justify disparate treatment of” lesbian and gay couples. Under the law, the court concluded, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.”

The Supreme Court’s separate ruling declared unconstitutional California’s Proposition 8, passed in 2008, which limited the granting of marriage licenses to heterosexual couples. The Supreme Court ruled in the case, Hollingsworth v. Perry, that the proponents of Proposition 8 did not have legal standing to appeal a U.S. District Court's ruling that the proposition is unconstitutional.

“The Supreme Court’s decisions mean that all legally married couples will finally be protected by the federal government and marriage will be returned to California,” says Andre Banks, executive director of All Out. “These decisions will have an enormous impact on millions of families and affirm the commitment to equal protection guaranteed by the U.S. Constitution for all people, regardless of their sexual orientation or gender identity.”

Hollingsworth v. Perry, previously known as Perry v. Schwarzenegger and Perry v. Brown, was filed on behalf of two same-sex couples in federal district court in California in May 2009. Under the sponsorship of the American Foundation for Equality Rights, co-founded by HRC President Chad Griffin, and represented by conservative attorney Ted Olson and liberal attorney David Boies, the plaintiffs achieved victories in both district court and the U.S. Court of Appeals for the Ninth Circuit, both of which ruled Proposition 8 unconstitutional.

In Windsor v. U.S., Edie Windsor, represented by the ACLU and the law firm Paul Weiss, challenged section 3 of DOMA, which required her to pay $363,000 in estate taxes after her partner and spouse of more than 40 years passed away. If Edie had been married to a man, instead of a woman, her estate tax bill would have been zero.

Under the DOMA ruling, gays and lesbians who live and marry in a state that permits same-sex marriage will be able to receive federal marriage benefits within the month. Among them: the ability to take advantage of the unlimited federal marital deduction, as same-sex couples can transfer assets to beneficiaries free of gift and estate tax.

This benefit alone can save same-sex couples costly and time-consuming implementation of tax-avoidance techniques, say observers. These included, for instance, placing assets in a revocable living trust or in a will established for the benefit of the surviving partner.

[The DOMA ruling] was predicted by legal experts, but it’s still a remarkable and hopeful moment,” says Chuck Wolfe, president and CEO of the Gay & Lesbian Victory Fund. “And while the ruling doesn’t extend marriage equality to any other states, it does mean that when we finally win there too, those wins will be even sweeter.”

But sources warn that federal benefits—there are more than 1,000 federal laws and programs to which LGBT couples may be subject—will vary, depending on their situation. Couples that live and marry in a state that allows same-sex marriage, but move to a state that still has a ban, may receive benefits from certain agencies, but not others.

The IRS and Social Security Administration, for example, make determinations as to benefits based on where couples reside and not where they marry. Similarly, federal benefits will vary by agency in situations where gay couples visit or marry in a state where same-sex marriage is permitted, but reside in a state where a ban is in force.

“While marriage for gays and lesbians will be a reality once again in California, the law is still a complicated mess for gays and lesbians in the United States,” Banks says. “Gay Americans have on-again, off-again protections depending on where they live, and where they travel.

“This is unacceptable, and un-American,” Banks adds. “We will continue to fight until the freedom to marry is available in 50 states and every country around the world.”

Same-sex marriages, observers note, remain unavailable in some 38 states. That has implications not only for federal marriage benefits. Though able to secure the unlimited federal marital deduction, for example, gay and lesbian couples may still be subject to state estate tax and be required to file separate state income tax returns.

The challenges extend to child-rearing. Some states allow both partners' names to be on a child's birth certificate; other states won't allow same-sex parents to adopt their own children.

The death of a same-sex spouse can leave a surviving partner bereft of children the couple had been raising. States that do not recognize same-sex relationships might, for example, seek to return the children to the biological parents or other family members.

“This is a truly monumental day for our community and in our movement for equal rights,” says Troy Stevenson, executive director of Garden State Equality. “However, the day is also bittersweet for New Jersey and in dozens of states around the country where discrimination continues and same sex couples remain relegated to second-class citizenship. “New Jersey’s LGBT families will continue to be denied 1,138 rights and benefits granted to married couples by the federal government, even as those rights are conferred to LGBT families in our neighboring states,” Stevenson adds. "That is because New Jersey’s civil union couples are not afforded full marriage equality.”

State issues aside, most LGBT organizations regard the court’s rulings positively, viewing them as one more step on the way to full equality—and not just for U.S. nationals. The court’s decision on DOMA also renders moot a measure eliminated from an immigration bill to be taken up by the full Senate that would let U.S. citizens apply for permanent residency on behalf of their same-sex partners.

“At long last, we can now tell our families that yes, they are eligible to apply for green cards,” says Rachel Tiven, executive director of Immigration Equality, a New York City-based non-profit that advocates for equal immigration and asylum rights. “Americans separated from their spouses are now able to prepare for their reunion. Today’s ruling is literally a life-changing one for those who have suffered under DOMA and our discriminatory immigration laws.”

Adds Evan Wolfson, founder and president of Freedom to Marry: “This is truly a day of celebration for loving and committed same-sex couples and their families—and for all of us who believe in the American journey to equality under the law and the pursuit of happiness, with liberty and justice for all. The Supreme Court’s mortal blow to DOMA puts the moral weight of the federal government on the side of all Americans who seek to share in the freedom to marry and all its protections and responsibilities.”

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