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Corporate Counsel Connect collection

September 2013 Edition

After Windsor, the legalization of same-sex marriage is more inevitable than ever

Jeremy Byellin, JD

Jeremy ByellinThis past June the Supreme Court issued a landmark ruling U.S. v. Windsor, striking down Section 3 of the federal Defense of Marriage Act. Since Section 3 limited the definition of marriage within federal code to heterosexual couples, its invalidation in Windsor allows the federal government to recognize same-sex marriages solemnized in states that have legalized the practice.

Justice Antonin Scalia, dissenting in Windsor, spared no vitriol for the majority – claiming, among other things, that the Windsor majority usurped the powers of Congress and the Executive, that it is "quite untrue" that DOMA "stigmatizes" same-sex couples, and that the Court's opinion will pave the way for the destruction of all state prohibitions against same-sex marriage.

Justice Scalia seems to be right on at least one of those claims (the latter):

  • Just two days after Windsor, a federal judge in Detroit, Michigan granted a preliminary injunction against the enforcement of a state law denying domestic benefits for gay and other unmarried couples.
  • On July 1, another Detroit federal judge denied the state's motion to dismiss the plaintiffs' challenge to the state's same-sex marriage ban.
  • On July 9, a group of same-sex couples filed suit in federal court in Pennsylvania, challenging the state's same-sex marriage ban.
  • On July 22, a federal judge in Cincinnati, Ohio, granted a preliminary injunction requiring a dying man's future death certificate to reflect his husband as his surviving spouse (the couple was wed in Maryland), finding that, under the U.S. Constitution, Ohio must recognize out-of-state same-sex marriages.

Windsor is cited in all of these cases – and the Ohio ruling even specifically quoted Justice Scalia's prediction that the ruling would lead to challenges to state same-sex marriage prohibitions.

But that wasn't the only prediction of Justice Scalia that is proving accurate; Scalia also stated that, in Section 3's absence, "difficult choice-of-law issues" will arise. Scalia cited an example of a same-sex couple who wed in New York, but then moved to Alabama, where same-sex marriage is not recognized. The "choice-of-law issues" Scalia indicated refer to, in this example, whether the couple may file a joint federal tax return.

Part of that question was answered by an Internal Revenue Service ruling released at the end of August, holding that all legally wed same-sex couples, no matter which state they live in, are entitled to the same federal tax benefits as married heterosexual couples. In addition, the ruling allows same-sex spouses to amend previous tax returns to change their filing status of tax years 2010, 2011, and 2012, to seek potential refunds.

There are several significant effects that will arise from this ruling. The first, clearly, is that it creates strong financial incentives for same-sex couples to get married, thereby increasing the number of same-sex spouses, even in states that do not recognize same-sex marriage.

The second consequence is that nearly half of all states – 24, to be exact – will have to issue some kind of guidance on filing state tax returns very quickly. Why? Those 24 states, which ban same-sex marriage, require state taxpayers to refer to their federal tax returns when completing their state ones.

If any of those 24 states refuse to allow same-sex spouses to file their taxes jointly (which the vast majority will undoubtedly do), it puts those states in a position of affirmatively denying tangible economic benefits to individuals based solely on their sexual orientation – something which Windsor specifically held that the federal government was constitutionally barred from doing.

Together with the aforementioned increase in same-sex couples getting married, the IRS ruling will seemingly only increase the number of legal challenges to state same-sex marriage bans across the country. And, if recent court rulings are of any indication, the momentum in court appears to favor same-sex marriage proponents. As such, the nationwide legalization of same-sex marriage appears to be a greater inevitability than ever before.

Individuals and organizations alike would likely best serve their own interests by preparing for this.

About the Author

Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.