Today is the next front in the struggle for equality for gay couples, as the Second Circuit Court of Appeals hears arguments in the case of Edith Windsor, an 83-year-old woman who suffered discrimination under DOMA. Windsor married her long-time partner in 2007 in Toronto, but her spouse died in 2009. Because the federal estate laws do not recognize a gay spouse as a spouse, Windsor had to pay almost $400,000 in estate taxes that would not otherwise have been due. She claims that DOMA's discrimination against her violates the Equal Protection clause of the U.S. Constitution. See NY Appeals Court Hears Challenge to DOMA, NewsMax (Sept. 26, 2012).
Even though six states have now legalized same-sex marriage, the so-called "defense of marriage act" (DOMA) does not allow recognition of such couples as spouses or married for federal law purposes, including joint filing of federal income taxes, estate taxes, pension benefits, and similar issues important to couples that are an economic unit.
Let's imagine a story that could be happening right now all over the country. You are a professor at a small college in your forties and have hoped against hope that you'd someday find Mr. Right. You finally meet him at an orientation session for new faculty--he's come to you! Over the next few years, you two get to know each other and realize that you want to be in a committed relationship for the rest of your lives. You excitedly arrange events--an engagement party with all the trimmings, a wedding shower that your mother hosts, a wedding in your home church, and announcements to your friends all over the world. You head out on your honeymoon, for which you've saved enough to manage a month-long trip to the Alaskan hinterlands, your dream vacation. Finally, you are back home going through the reams of mail (mostly junk) that have arrived during this hectic time. You open a letter from TIAA-CREF, through which you have your retirement savings. Here's what it says:
The State of Illinois adopted 750 ILCS 75/1 konwn as The Religious Freedom Protection and Civil Union Act ("The Act"). The Act became effective for policies and contracts issued on or after June 1, 2011. The Act creates a legal relationship between two persons of the same or opposite sex that form a civil union legally entered into in the State of Illinois and other jurisdictions. Parties to a civil union are entitled to the same legal obligations, responsibilities, protections and benefits that are afforded or recognized by the laws of the State of ILlinois to spouses.
Pursuant to Section 3 of the Federal Defense of Marriage Act ("DOMA"), same-sex marriages and civil unions are not recognized for purposes of federal law. Therefore, the favorable income-deferral options afforded by federal tax law to an opposite-sex spouse under Internal Revenue Code sections 72(s) and 401(a)(9) and "spousal continuation" rights are currently not available to a party to a civil union.
Civil union partners who own or are considering the purchase of annuity products that provide benefits based upon status as a spouse should consult a tax advisor. To the extent that an annuity contract or certificate grants to spouses other rights or benefits that are not affected by DOMA, civil union partners remain entitled to such rights or benefits to the same extent as any annuity holder's spouse. TIAA-CREF "Notice Regarding Civil Unions in the State of Illinois", A13531 (3/12).
Imagine, now, your feelings as you read this. Through the joy you had let yourself forget that your union, a civil union under the law of your state and a marriage in your church, would not be treated as a real marriage and union for any federal law purposes. But this reminds you of that stark fact, strikingly pointing out the discrimination that you suffer from the federal government based on nothing other than the fact that you are a gay man married to a gay man.
When is the United States Congress going to recognize that perpetuating discriminatory laws based on some people's religious values is not appropriate, just as perpetuating discriminatory laws based on the Southern "culture" of slavery was not appropriate? With the current Congressional makeup, one expects it will take some time.
I suspect the Second Circuit will join others in finding DOMA unconstitutional--I certainly hope so. And it is vitally important that the Supreme Court act to confirm the many lower-level court cases that have found DOMA unconstitutional.
For readers interested in reading more about the intersection of federalism, same-sex marriage laws, and Constitutional protections, you may enjoy Mae Kuykendall, The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition, American Constitution Society Issue Brief (Sept. 2012).