Historic Supreme Court Arguments over Same Sex Marriage

The Supreme Court heard arguments yesterday on whether the Defense of Marriage Act is constitutional.  The session capped two days of arguments which could determine the future of same sex marriages in the United States.

Five of the Justices questioned the constitutionality of the law, noting that the issue of marriage has traditionally been an issue reserved to the states.  However, other justces questioned whether proponents of the law had standing to bring the challenge to the Supreme Court.  This gave rise to a possibility that the Supreme Court will not itself rule on the constitutionality of the Act, but instead let the Second Circuit case of Windsor v. United States stand.  In Windsor, the Second Circuit found the Defense of Marriage Act unconstitutional.

The Defense of Marriage Act defines marriage for federal law purposes as a union between one man and one woman.  As a result of the Act, legal benefits available to heterosexual married couples are not available to same sex legal unions.

The case itself involves the availability of the marital deduction in calculating the federal estate tax when the decedant was one spouse in a legal same sex marriage.  By striking down the law as unconstitutional, the Second Circuit permitted a same sex spouse to benefit from the marital deduction and thus lower the estate's federal estate tax.

If the Act were struck down, it would have far-reaching implications from federal employee benefits to estate planning to possibly even immigration benefits.

On the day before, the Supreme Court held arguments on California's Proposition 8, which outlawed same sex marriages in California.  On that case, the Justices appeard to be sharply divided.  As with the argument over the Defense of Marriage Act, there appeared to be a real possibility that the Court would dismiss the case on a technicality ground, allowing a Ninth Circuit decision that found Proposition 8 unconstitutional stand.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchelderlaw.com

Second Circuit Finds that U.S. Government Cannot Discriminate Against Legal Same-Sex Marriages in Applying the Estate Tax

The U.S. Court of Appeals struck down the Defense of Marriage Act in the case of Windsor v. United States.  Specifically, the Court found that section 3 of the Act, which defines marriage as the legal union between one man and one woman, violated the Equal Protection Clause of the Constitution.

The case involved a same-sex couple who had legally married in Canada, and lived in New York.  One spouse died, leaving the other to inherit property.  The surviving spouse claim the spousal deduction for federal estate tax purposes, which was disallowed under the Defense of Marriage Act.  As a result, the estate tax bill amounted to over $300,000.

Under the Court's decision, the Federal Government would be required to recognize legal same-sex marriages when applying the federal estate tax.  In some respects, the Court's decision could be far-reaching, as legal same-sex marriages would have to be treated equally to heterosexual marriages for a variety of federal laws and programs, such as Social Security benefits, family leave and employee benefits.  On the other hand, the Second Circuit has jurisdiction only over Connecticut, New York and Vermont.  The only other federal court to find the Defense of Marriage Act to be unconstitutional is the First Circuit.  For the rest of the country, the Defense of Marriage Act remains the law of the land.  Nonetheless, the Second Circuit's decision makes it more likely that the U.S. Supreme Court will hear a case involving the Defense of Marriage Act.

I go into more detail in this article.

A New York Times article on the decision can be found here.

The text of the decision can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchelderlaw.com