On Friday, the Supreme Court of the United States granted certiorari on two same sex marriage cases. Those cases include Hollingsworth v. Perry, a challenge to California’s controversial Proposition 8 measure, and a case out of New York, U.S. v Windsor, which considers the constitutionality of the Defense of Marriage Act (DOMA).
As noted on the blog before, lawyers and judges like to use Latin. So here’s a quick primer: granting certiorari (or “granting cert” for the really cool hipster lawyers) means that the Supreme Court will hear the matter.
Some cases have what’s called “original jurisdiction” in the Supreme Court; those cases, which are defined by statute (28 U.S.C. § 1251) go straight to the Supreme Court. The typical case associated with original jurisdiction would be a dispute between the states. Most cases, however, don’t go that route. To be heard at the Supreme Court level without having original jurisdiction requires the losing party at the appellate level to file a petition seeking a review of the case. If the Supreme Court grants the petition and decides to hear the matter, it’s called a writ of certiorari. And that’s what happened here.
The two matters, Proposition 8 and defense of DOMA, feel interrelated since on a basic level, they both touch on same sex marriage. But on legal grounds, they’re very different.
Proposition 8 was put on the ballot in California in 2008 (wow, was it really that long ago?) and added a new provision to the California Constitution which provided that “only marriage between a man and a woman is valid or recognized in California.” In other words, it was a ban on same-sex marriage. The matter went to court and was initially upheld (though existing same-sex marriages were grandfathered). In 2010, U.S. District Court Judge Vaughn R. Walker overturned Proposition 8 in Perry v. Schwarzenegger finding that the law violates same sex couples’ rights to equal protection and due process under the US Constitution. That decision was affirmed by appellate courts in 2012.
I had a sense in 2010 – and I believe it to still be the case today – that even if the Supreme Court hears Proposition 8 (and now we know it will), it won’t be an earth shattering verdict for same sex marriage. It will be, I think, much like other constitutional rights cases and may come down to a matter of interpretation of individual rights as defined by the high court. Even if the law is interpreted in favor of overturning Proposition 8, I suspect the ruling will be limited to the issues at law as defined in California.
I said, in 2010, that the answer on same sex marriage wouldn’t come down to Proposition 8, rather “any substantial ruling about the rights of same sex couples will be manifested: not in a statewide vote, not in parades and demonstrations but rather in the mere tick of a box on a tax return.”
And that’s where the DOMA case becomes interesting. U.S. v Windsor isn’t about so much about the individual rights of folks to marry but the rights of states to make rules that are at odds with the federal government.
Here are the facts in Windsor: Edith Windsor, a resident of New York, married Thea Spyer, her partner of 40 years, in Canada. Two years later, Spyder died. At her death, New York had in place a law which recognized same-sex marriages performed in other jurisdictions. So for purposes of New York law, Spyer and Windsor were considered married. However, Spyder’s estate was required to pay more than $363,000 in federal estate taxes on the transfer of her assets to Windsor because the federal government does not recognize same sex marriages because of DOMA.
DOMA has landed before high courts before – though not our highest court. In 2009, the Tax Court heard a case on DOMA which was settled without addressing the specific issues in DOMA. That case didn’t have great facts, prompting me to write that year, “…[Y]ou want to talk DOMA? File a bona fide DOMA challenge.”
Windsor is a bona fide DOMA challenge. Here’s why: throughout history, the federal government has been very wary to trample on states rights issues. And Congress has tended to defer to the state’s interpretation of marriage. This interpretation has been relied upon for federal tax purposes in almost every case. In fact, on the instructions for the federal form 1040, the IRS indicates that “state law governs whether you are married or legally separated under a divorce or separate maintenance decree.” However, as a result of DOMA, there is one significant exception, codified in 1996: “[f]or federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife, and the word “spouse” means a person of the opposite sex who is a husband or a wife.” By January 2013, same sex couples will have the right to marry in nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington) and the District of Columbia – those marriages will not be recognized by the U.S. government for tax purposes.
So let’s throw our personal views about same sex marriage out of the window for a second and think about the law. From a states rights and federalist perspective, a law which seeks to invalidate the right of states to set their own definitions of marriage is concerning. In other words, it’s not about protecting a specific class of persons – as Proposition 8 could be interpreted – but about allowing states to set their own rules and have those rules be respected by the federal government. Arguing that the federal government should be allowed to disregard the sanctity of state laws is a tough sell at the Supreme Court level. Not impossible, perhaps, but a tough sell.
Will the court strike down DOMA completely in 2013? I don’t know that I see that result. I could see a pretty narrow ruling that might be limited to the rights of states to make laws that are respected for federal tax reasons. That, however, could open the door for bigger things. In the end, Benjamin Franklin may be right. To paraphrase a little, it may all come down to death and taxes.
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