Judge Timothy Black has issued a stay of the decision he issued on Monday, April 14, 2014. The case, Henry, et.al v. Himes, deals with birth certificates and recognition of out-of-state same-sex marriages. The judge did not put a hold on the decision as it affects the lesbian couples who filed the case. Those couples are expecting the birth of children in the next few months. For them, Judge Black's decision means Ohio must place the names of both women on their child's birth certificate.
Gov. Kasich has ordered the Ohio Dept. of Health to not put the names of same-sex parents on birth certificates. This is a change in policy and was done without notice to anyone. Judge Black's decision countermands that policy.
This is a very good decision for children. Birth certificates are an essential part of everyone's life.
The Judge's decision puts everything on hold for other Ohio married same-sex couples until the 6th Circuit Court of Appeals rules on Ohio's appeal. The 6th Circuit is also considering other appeals on the issue of same-sex marriage and LGBT rights. Ohio has two appeals pending, the first involves Judge Black's decision last summer requiring the state to recognize same-sex marriages on death certificates. Other appeals are pending from Michigan, Kentucky and Tennessee. That means every state in the circuit is appealing a same-sex marriage related decision from a trial court.
In addition to the 6th Circuit, appeals on same-sex marriage recognition are pending in the 4th, 5th, 9th and 10th Circuits. Appeals are expected in the 3rd and 11th Circuits within the next year. The only Circuits that will not see appeals are the 1st and 2nd Circuits because the marriage issue has been decided.
Stay tuned. It's an exciting time for LGBT rights in the United States.
The National Center for Lesbian Rights (NCLR) has a series of publications addressing what the post-DOMA world will mean to you. You can access everything on the NCLR website at http://www.nclrights.org/site/PageServer?pagename=DOMA_FAQ_2013 You will find information on issues like marriage, benefits for military families, immigration and FMLA
. These pdf documents will give you a heads-up on recent developments.
Just returned from the 2013 Lavender Law in San Francisco. With all the changes occurring since the U.S. Supreme Court issued its decision in United States v. Windsor, there was a great deal to learn and discuss.
Here are some insights from the conference:
1. Marriage: Don't rush into a marriage. It is important to consider why you want to get married and what effect marriage will have on your life, assets, taxes and other issues. Discuss the financial ramifications with your attorney, financial advisor and accountant. Some couples that rushed into marriage or got married as a political statement have discovered that move was not in their best interests.
One major concern is you may find it is easy to get married and difficult to get unmarried. Most states require you to live in the state for a period of time before being able to get a divorce. Vermont, D.C., Minnesota, Delaware and California are states that do not have residency requirements for couples who married in those states but live in states where they cannot get divorced. Vermont has an additional requirement--the couple cannot have minor children of the marriage.
In any event, take your time before jumping into anything.
On June 28, 2013--two days after the U.S. Supreme Court issued its ruling in Windsor v. United States, the Office of Personnel Management (OPM) announced that spouses of married lesbian and gay federal employees were eligible for benefits. Who knew the feds could work that quickly.
That decision affects me directly because my spouse is employed by the U.S. Department of Labor. We hoped it would happen but never expected it so quickly. Betsy and I prepared the paperwork and submitted it over the weekend. Yesterday, Betsy received notice the change has taken place and will be effective June 30.
OPM decided that state of celebration controlled--it does not matter that we live in a nonrecognition state. I will receive the same benefits as every other spouse of a federal employee.
The Department of Homeland Security also issued an announcement that U.S. citizens can sponsor their foreign-born spouses for a family visa. This also applies to current green card holders.
The U.S. Department of Defense announced it is proceeding to provide all family benefits to lesbian and gay servicemembers and their families. As with OPM, DoD is looking at the state of celebration, not state of residence to determine eligibility.
One big fish still swimming around out there is the Internal Revenue Service. The IRS has issued no guidelines about how it will handle the situation. The only logical choice is "state of celebration". Anything else will create a tax nightmare for the IRS and affected taxpayers.
The Social Security Administration will be the outlier. The statute under which the SSA operates specifically states that "spouse" and "marriage" is defined by the state of residence. Congress will need to change the statute and it is unlikely that entity will take any action. The Republicans will fight any changes just because they can. Without congressional action the U.S. Supreme Court will need to get involved and that can take years. In the meantime, lesbian and gay married couples, living outside the equality zone, will find themselves without spousal survivor benefits.
It's been three weeks since the U.S. Supreme Court issued the decisions in Windsor v. United States & Hollingsworth v. Perry. Immediately following the decisions everyone seemed to post something about what the decisions mean for married lesbian and gay couples, the LGBT community as a whole and the future of marriage in the U.S.
I decided to wait a bit, digest the decisions and think about the Supreme Court's ruling before commenting.
Make no mistake, the decisions have made a significant difference in many lives. Every married same-sex couple in one of the 14 marriage equality jurisdictions will now be considered just plain ol' "married" for federal and state purposes.
California's Proposition 8 is not being enforced. Contrary to the legal claims of the Prop 8 proponents, the U.S. District Court decision ruled Prop 8 unconstitutional. When a federal court issues such a decision, the matter can be appealed. If it is not appealed the decision stands and is enforceable. The Perry decision held the Prop 8 proponents had no right to appeal the trial court decision. The Supreme Court vacated the 9th Circuit judgment and that puts the trial court decision back on top. Now the California Supreme Court is set to determine whether the trial court's decision applies across the state or only in the two counties from which the plaintiffs hail. I find it difficult to think the court will decide the latter. It would make for an untenable situation in California. The Prop 8 proponents need to give it up. You lost!
Windsor presents other issues. Nothing in the decision restricts its application only to those married lesbian and gay couples living in a marriage equality jurisdiction. Justice Kennedy could have restricted the opinion but did not. Therefore, a reasonable argument can be made that the federal government must recognize marriages throughout the country and look only to the state of celebration (where the marriage took place).
Unfortunately, it seems clear the decision does NOT apply to civil unions and domestic partnerships. Lesbian and gay couples in the seven states that recognize those continue to enjoy only state benefits. And, the remaining 29 states that ban marriage equality, either through statute, constitutional amendment or both, continue to have the authority to discriminate against their lesbian and gay citizens where state benefits are concerned.
The Ohio Department of Health is refusing to issue new birth certificates for children adopted by same-sex couples. This is a troubling development and has not been widely publicized. This means that lesbian and gay couples that adopt an Ohio born child will be unable to obtain an accurate birth certificate reflecting their parental status. The letter that DoH is sending out is included below. Apparently, Governor Kasich issued the order to DoH instructing them to refuse to issue an amended birth certificate. There is no legal justification for the Department's action. A lawsuit is expected that will challenge this decision.
Many lawyers believe the Supreme Court's decision in Windsor v. United States will mean the death knell of the Defense of Marriage Act (DOMA). I do not agree. The issue before the Court involves Section 3 of DOMA. The case is not challenging DOMA in its entirety. I think this is being missed by many people talking about the case. I keep hearing media pundits, including the legal talking heads, discuss the end of DOMA. It seems they have not read the briefs or listened to the arguments.
Section 3 deals with the federal government's refusal to recognize same-sex marriage. Section 2 grants states the right to refuse to recognize these marriages. Section 1 is the title and definition part.
Edith Windsor challenged the federal government's decision to charge her $326,000 for estate taxes on her late spouse's estate. Had her spouse been a man there would be no estate tax due because spouses can transfer an unlimited amount of assets between themselves. Windsor's case argues that her marriage was legal in both Canada--where she and Thea were married--and in New York where they lived. Both jurisdictions recognized the marriage. Under DOMA, however, the IRS was prohibited from doing the same.
Windsor is not challenging DOMA as a whole. This is an incremental step in the process.
If Windsor is successful, the Supreme Court will declare Section 3 unconstitutional as it is applied in marriage equality jurisdictions. That includes 12 states (Massachussetts, Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Delaware, Maryland New York, Minnesota, Iowa and Washington) and the District of Columbia.
It will NOT apply in the 28 remaining nonrecognition states. It MAY NOT apply in the states that permit some type of recognition like Civil Unions or Domestic Partnerships (California, New Jersey, Oregon, Colorado, Hawaii, Illinois and Wisconsin). California
But, no one knows exactly what will happen until the Court issues its decision--and that will come next week. The Court's session ends at the end of June.
The United States Supreme Court ended today's session without issuing a decision in Windsor v. United States or Hollingsworth v. Perry. The court will reconvene on Monday, June 17, 2013. The SCOTUS blog will start its live blogging at 930 a.m. on Monday. They will carry live coverage of the decisions being issued. SCOTUS blog is an excellent source of information on the U.S. Supreme Court.
FYI, SCOTUS is an acronym for Supreme Court of the United States.
As of now, the Court has listed Monday, June 17 as the last day to issue decisions. However, it may add additonal days next week. I think the Court will wait until the last possible moment to issue its decisions on affirmative action, the Voting Rights Act, DOMA and Prop 8 because all four cases will generate considerable response from the media and the public. The Justices may want to leave town before the decisions see the light of day.
In any event, it is an exciting time to be watching the court. These 4 decisions will have great impact on the lives of so many Americans.
Some married lesbian and gay couples are considering filing protective claims this year because of the pending U.S. Supreme Court cases in Windsor v. United States and Hollingsworth v. Perry.
These couples are filing amended federal tax returns listing themselves as "married and filing jointly". The Internal Revenue Code allows protective claims and the returns will be put on hold pending the outcome of, in this case, the Supreme Court's decision in those two cases.
The Defense of Marriage Act (DOMA) prohibits the feds from recognizing same-sex marriages. This means lesbian and gay married couples cannot file as married on their tax returns. They must file as "single". However, since they are legally married there is a concern about the "under penalty of perjury" provision when they sign their returns. It's a conundrum for them--they aren't single, except where the feds are concerned because of DOMA.
This is where the protective claims come into play. Look at IRS Pub 556 for additional information on how to file and talk to your tax preparer. There is a 3-year look back period for filing an amended return. You'll be able to go back to tax year 2009.
Protective claims are often based on pending court cases, like Windsor. It may be worthwhile to checkin into whether you are eligible to file a protective claim and whether it will do you any good. In some cases, a married lesbian/gay couple may be entitled to a refund.
No guarantees but it should be a consideration.
Lots happening on the LGBT front. The U.S. Supreme Court will hear oral arguments on March 26 and March 27 in the Windsor v. United States and the Hollingsworth v. Perry cases.
Windsor deals with Edith Windsor's claim that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. She won at trial and in the 2nd Circuit Court of Appeals. Edith and her late spouse, Thea Spyer, were married in Canada (see my earlier post).
After Thea died Edith owed over $320,000 in federal estate tax. Had their marriage been recognized by the federal government the amount owed would have been $0--just like any other married couple. DOMA prohibits the federal government from recognizing same-sex marriages--even when the marriages are recognized in the taxpayer's state of residence.
So, the Supreme Court will consider the appeal. No one is sure what will happen or what the vote will be, but the next few months will be an interesting and tense time.
One big issue is whether the court will declare section 3 of DOMA unconstitutional across the board and require the feds to recognize same-sex marriages in every state; even those that prohibit recognition. And, what impact it will have on couples living in Civil Union and Domestic Partnership states.
The Hollingsworth case comes out of California and deals with Proposition 8, the 2008 California ballot initiative that prohibited same-sex marriage. The 9th Circuit decision was written with Justice Kennedy in mind and is narrowly drawn.
One issue that may preclude any definitive decision is if the court decides neither the Prop 8 proponents appealing in Hollingsworth or the U.S. Housing of Representatives appealing in Windsor have the right to appeal. The Court could dismiss both appeals without addressing the merits. It would be tantamount to a judicial kicking the can down the road. Stay tuned.