Where Do Gay Married Couples Have Federal Benefits After DOMA?

The funny thing about the DOMA opinion, otherwise known as US. v. Windsor, is for as important a decision it is, it all started as a tax case.

Windsor married her partner of 40 years in Canada. New York passed gay marriage, so their marriage became recognized in New York.  Windsor’s partner died, but Windsor had to pay taxes on her partner’s assets as if they were not married.  So Windsor paid almost $400 thousand, and then she sued to get it back. Now, she will get it back.

Here’s the thing. The DOMA decision in no way established gay marriage as a fundamental right. There is some language in the opinion that suggests the 5 Justices who supported the opinion might be willing to go in that direction with the right case, but we aren’t there yet.  All the Windsor case says is that if a state provides for marriage between same-sex couples, then the federal government must recognize that marriage.

The federal government provides many, many benefits to married couples. For a list of some of those rights take a look at this HRC article on the issue. (It was written before the DOMA decision so it refers to DOMA as good law.) There are over 1000 rights conferred on married couples. The end of DOMA means that a gay couple which is married in a state that recognizes gay marriage is entitled to all those rights.

Here’s the Catch

Let’s say you live in Pennsylvania.  And you decide to travel to Maryland to get married to your same-sex partner. But you still live in Pennsylvania. Your marriage, essentially, means nothing, legally speaking. You would need to live in Maryland or another state that recognizes your legal relationship to have your marriage recognized.

Before the decision came down, someone posed just this question to me. She wondered, would she get federal benefits in Pennsylvania since she was married in Maryland? I told her no. Unfortunately she would not. Perhaps she will decide to move to Maryland, if that is now an option for her. The financial benefits of doing so for her, her spouse and their child would be great.

There is Confusion

I read two articles by tax attorneys analyzing filing status and gay marriage.  Remember, the DOMA decision was a tax case. And I saw a fundamental disagreement between those two attorneys on what DOMA means for taxes. I imagine others have this disagreement as to the entirety of the federal benefits.

One person wrote that if you are married in any state, you can file as if you are married for your federal taxes.  Another person wrote the opposite.  I agree with the person who wrote the opposite. I.e., it doesn’t matter if you are married, you have to live in a state that recognizes that marriage to receive the benefits and to file as a married couple.

What Next?

What I can tell you is that this kind of issue is exactly what will give rise to the next lawsuit.  A couple will get married in a state with same-sex marriage, and then return (or move) to a state that does not have same sex marriage. That state will refuse to recognize the marriage and the couple won’t have their federal benefits. So they will sue.  The case will work its way up to the Supreme Court.  What will happen there? Who knows.

Forum Shopping?

I heard an interesting argument today from someone who is unhappy with the DOMA decision. It was that gay people will engage in forum shopping to get benefits.  Well, yes, they might. Why wouldn’t they? If their rights are recognized in one state and not in another, it would be quite logical to move to the state that recognizes their rights.

I imagine a lot of people are considering whether to move right now. In fact, the states that do not allow gay marriage could experience some harm as gay couples who can do so flee to jurisdictions that are more welcoming.  The federal benefits make it worth it.

The answer to this problem is not to prevent marriage at the federal level. It is to require all states to recognize same-sex marriage.

Thank You Mrs. Windsor

Thank you Mrs. Windsor.  You are a strong, brave lady. I am sorry you lost your wife of so many years. But I am grateful you had the courage to fight. All gay people owe you a vote of gratitude. For Mrs. Winsdor’s wedding announcement from 2007, see the New York Times.