Same-sex marriage and Obama’s decision to dump DOMA

The Defense of Marriage Act (DOMA) was passed by Congress and signed into law by President Clinton in 1996. Among other provisions, it specifies that any reference to marriage in any federal statute, regulation or ruling shall mean only a legal union between one man and one woman, and that the word “spouse” in any federal context shall mean only a person of the opposite sex who is a husband or a wife.

Since that enactment, at least five states (Massachusetts, Iowa, Connecticut, New Hampshire and Vermont) and the District of Columbia have legalized same-sex marriage. Other states recognize same-sex marriages legalized in other jurisdictions. But because of DOMA, even legally married same-sex couples have not been recognized as married by the federal government.

President Obama and Attorney General Eric Holder recently announced that the federal government would no longer defend DOMA against constitutional challenge, and would join in seeking rulings that DOMA is in fact an unconstitutional denial of equal protection. Here are some of the practical implications of that decision which occur to me:

Federal estate tax law provides an unlimited deduction for property left by a decedent to his or her spouse. A pending case involves the survivor of a same-sex marriage who is suing for the same marital deduction for inherited property as the survivor of a traditional marriage would receive.

Federal income tax law allows married couples to file a joint income tax return which allows them to combine their income and have it taxed at (usually) lower rates than would be assessed if they were single. Same-sex couples should now be emboldened to assert their right to file jointly when it is to their financial advantage.

Federal tax laws governing corporations and partnerships often provide for different tax consequences for transactions between such entities and their owners, depending on whether or not such owners have sufficient control over the entities. In measuring control, the ownership interests of a spouse include those owned by the other spouse. The new federal policy could thus invite challenges that would reverse the tax outcomes in some cases. But as in the situation of married couples filing jointly, the continued existence of DOMA gives same-sex spouses a plausible justification to claim they are NOT married where that is to their advantage.

Most importantly, federal immigration laws recognize the non-citizen spouses of U.S. citizens as “immediate relatives” who can acquire legal permanent residence in the U.S. and a clear path to citizenship without any numerical quota. Failure to recognize same-sex marriages for this purpose has caused tremendous suffering among homosexual couples who have been without a means for legalizing the immigration status of a non-citizen partner. Now married same-sex couples can seek the same immigration benefits as would be available to opposite-sex couples, presumably with the legal support of the federal government.

The political implications of President Obama’s decision to join in the legal challenges to DOMA are less clear. But I suspect that those outraged by his decision were never going to support him anyway. On the other hand he has solidified his support among Gay and Lesbian voters and supporters of equal rights for homosexuals. For the majority of American voters, I doubt that this decision will be high on their list of concerns either way. So a net win for the President.

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