"United States v. Windsor" lawsuit: The U.S. Supreme Court
finds part of
federal
DOMA law ruled unconstitutional.
Starting 2013-JUN: Impact of the Supreme Court's
DOMA ruling on couples, and the subsequent
lawsuits it triggered, inspired, and/or influenced
Sponsored link.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the federal Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
2013-JUN-26: Background of the "United States v. Windsor" case involving the federal Defense of Marriage Act (DOMA):
The Court ruled that Section 3 of the federal 1996 Defense of Marriage Act is unconstitutional. This was the key section of the bill that had prohibited the federal government from recognizing legal, registered marriages of same-sex couples. Section 3 had denied all same-sex married couples benefits and protections from 1,138 federal programs that are routinely made available to opposite-sex couples. These programs included bankruptcy, federal student aid, federal employee benefits, family medical leave act, immigration, medicaid, medicare, military spousal benefits, private employment benefits, social security, supplemental security income, taxes, temporary assistance for needy families, veteran spousal benefits, etc.
Impact of the ruling on married couples:
For opposite-sex married couples, it has no impact. There are 1,138 federal government plans and protections that apply to them independent of:
- The state in which they live, and
- The state in which they were married.
However, for a same-sex married couple, things get much more complex:
- If they married in a state that allows same-sex marriage and currently live in the same state or in a different state that also allows SSM, then they should qualify for most federal benefits just like any opposite-sex couple.
- However if they live in a state that does not allow SSM then they may or may not qualify for a given program. For example:
- Whether they benefit from the provision of immigration laws depends the state laws defining same-sex marriages where they were married, not where they currently live.
- Whether they benefit from Social Security survivor benefits depend upon the state where the couple lived at the time that a spouse died.
Before this Court decision, many companies complained about DOMA because of the difficulty transferring an employee from a state that recognizes SSMs to their company facility at another state that does not recognize SSMs. The reason was that their employees were originally benefiting from various state benefits given to all married couples whether of the same-sex or opposite-sex. They would lose these benefits after the transfer because the new state would not recognize their relationship, but would often treat them like roommates. With Section 3 of the federal DOMA law declared unconstitutional, same-sex couples residing in the state where they were married would have access to both state and most or all federal benefits. However, if they were transferred to another state where SSMs were not recognized, they would lose not only state benefits of marriage, but many or all federal benefits of marriage as well. This is bound to increase the employees' resistance to transfers, and to increase the employers' hostility towards one of the 37 states that do not currently recognize same-sex marriages.
The only resolution to this mess would be to have SSM available in all 50 states, like the situation in Canada and about a dozen other countries. The United States and Mexico are currently the only countries in the world with a fragmented marriage system in which SSM is available in some states but not in others.
Eleven national LGBT advocacy organizations have jointly issued a series of fact sheets to help same-sex couples and their families understand their new federal rights. See "After DOMA: What it Means For You. You can read the LGBT Organizations' Fact Sheet Series" at: http://www.glad.org
DOMA had severely disadvantaged binational, married same-sex couples, where one partner is an American citizen, and the other is from another country. Prior to the U.S. Supreme Courts decision on 2013-JUN-26, the law prevented the federal government from recognizing such couples as married. Julian Marsh and Traian Povov were such a couple. However, two days after the Supreme Court overturned part of the DOMA law, the couple received the first "green card" issued to a binational same-sex married couple. The couple's lawyer said:
"The approval of this petition demonstrates that the Obama administration’s commitment to recognizing same-sex couples’ marriages after the Supreme Court ruling is now a reality on the ground. We expect additional approvals of green card applications and petitions in the coming days." 1
Elise Foley, a reporter for Huffington Post wrote:
"Wednesday's Supreme Court ruling doesn't entirely fix the problem -- couples must be married rather than partners, and must travel to a state that allows same-sex marriage if they don't live in one -- but it's still a major victory for LGBT rights. ..."
"Some of those binational couples have lived apart for months or even years because the foreign-born spouse can't legally remain in the country. Others must worry about whether they will lose their job and work visa, then be separated. Still others stay in the U.S. without legal status and risk deportation to be with their spouse. Some Americans just leave the country entirely when their partner cannot stay." 1
Subsequent lawsuits linked to this U.S. Supreme Court ruling:
A flood of lawsuits were triggered, inspired, and/or influenced by Justice Kennedy's DOMA ruling on 2013-JUN-26. They totaled at least 15 during the first month alone:
- The national office of the American Civil Liberties Union (ACLU) and its state affiliates have active cases underway in Pennsylvania and North Carolina.
- The ACLU joined with the National Center for Lesbian Rights (NCLR) to file a case in New Mexico.
- Lambda Legal has a case in Arizona concerned with health coverage.
- Lambda and the ACLU had separate cases in Illinois which have been consolidated into one. They intend to file a case in Virginia later.
- Lawsuits filed by lawyers on behalf of their clients are known to exist in Arkansas, Hawaii, Kentucky, Michigan, New Mexico, Ohio, Oklahoma, Texas, and Utah.
On 2013-JUL-18, about three weeks after the DOMA decision was released, after having wasting $2.3 million on a hopeless effort to defend the clearly unconstitutional federal DOMA law and thus preserve discrimination against same-sex married couples, the House Bipartisan Legal Advisory Group (BLAG) threw in the towel. They wrote a brief in the Tracey Cooper-Harris v. United States case, saying:
"The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant." 2
BLAG was a bipartisan group in name only. While it was composed of three Republicans and two Democrats. to our knowledge, the vote on every decision that the group made was 3 to 2, along strict party lines.
Information on specific lawsuits:
- New Mexico: The American Civil Liberties Union (ACLU) of New Mexico, ACLU national, the National Center for Lesbian Rights (NCLR), a legal group, and some attorneys filed a Writ of Mandamus with the New Mexico State Supreme Court. They asked the court to rule on two issues:
- Whether same-sex couples can marry in the state and
- Whether the state recognizes same-sex marriages solemnized in other states.
State recognition of same-sex marriages is needed so that such couples are eligible for the 1,138 federal marriage benefits and protections that are now available to married same-sex couples as a result of the United States Supreme Court decision on 2013-JUN-26 which declared Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional. More details.
The brief urges U.S. District Judge Terrence Kern to issue a ruling. It also points out that:
"Only a constitutional removal of Oklahoma's marriage ban ... will provide same-sex couples in Oklahoma all the federal benefits and responsibilities that are available now in 13 states and the District of Columbia."
The U.S. Justice Department has expressed an interest in filing a response to Holladay's brief. They have been given until AUG-24 to do this. 3
- Pennsylvania: Twenty-one plaintiffs launched a lawsuit during 2013-JUL called "Whitewood v. Corbett" in federal District Court. The intent is to force Pennsylvania to allow same-sex marriage in the state and to recognize same-sex marriages legally solemnized out-of-state. More details
References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Gay Couple Receives Green Card After Supreme Court Ruling: DOMA Project," The Huffington Post, 2013-JUN-29, at: http://www.huffingtonpost.com/
- Shannon Argueta, "House GOP Concedes Victory And Announce They Will No Longer Defend DOMA ," Addicting Info,
- Chris Casteel, "Supreme Court decision bolsters challenge to Oklahoma gay marriage ban, couple argues in state case," NewsOK, 2013-JUL-31, at: http://newsok.com/
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