TARRANT COUNTY BENCH BAR CONFERENCE LA TORRETTA RESORT, MONTGOMERY, TX APRIL 25-27, 2014 DEFENSE OF MARRIAGE ACT AFTER WINDSOR Presented by: BARBARA D. NUNNELEY Nunneley│Family Law Center 1845 Precinct Line Road, Suite 100 Hurst, Texas 76054 (817) 485-6431 Telephone (817) 577-9899 Telecopier LAURIE D. ROBINSON, R.N. Robinson & Smart, P.C. 4214 Little Road, Ste. 2000 Arlington, TX 76016 (817) 419-0023 Telephone (817) 417-6363 Telecopier SONYA R. CARRILLO Nunneley│Family Law Center 1845 Precinct Line Road, Suite 100 Hurst, Texas 76054 (817) 485-6431 Telephone (817) 577-9899 Telecopier Written by: SONYA R. CARRILLO [email protected]

TABLE OF CONTENTS I.

Defense of Marriage Act ....................................................................................................... 1 a.

DOMA Section 2, Powers Reserved to the States ............................................................. 1

b.

DOMA Section 3, Definition of Marriage......................................................................... 2

II. United States v. Windsor......................................................................................................... 2 a.

Facts ................................................................................................................................... 2

b.

Ruling ................................................................................................................................. 2

III.

Texas Law .......................................................................................................................... 3

a.

Cases in Texas .................................................................................................................... 4

b.

In the Matter of the Marriage of J.B. and H.B., 236 S.W.3d 654 (Tex. App.-Dallas 2010) ................................................................................................................................... 4

c.

State v. Naylor, 330 S.W.3d 434 (Tex. App.- Austin 2011)............................................... 5

d.

De Leon et. al. v. Perry et. al,. No. SA–13–CA–00982–OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)............................................................................................................. 6

e.

Equal Protection Challenge............................................................................................... 6

f.

Due Process Challenge ...................................................................................................... 6 Right to Marry – Infringement on Fundamental Rights ................................................. 6

g. IV. a.

Out-of-state Marriage Recognition ................................................................................... 7 Other States ....................................................................................................................... 7 History and Progression of Same-Sex Marriage Laws .................................................... 7

V. Federal Policy After Windsor................................................................................................ 8 a.

Federal Criminal Law........................................................................................................ 8

b.

Marital Privileges ............................................................................................................... 9

c.

Federal Taxes ..................................................................................................................... 9

d.

Social Security Benefits ................................................................................................... 10

e.

Medicare ........................................................................................................................... 11

f.

U.S. Visas & Green Cards for Same-Sex Spouses .......................................................... 11

g.

Military Benefits............................................................................................................... 11

h.

Benefits for Federal Employees ...................................................................................... 12

i.

Miscellaneous Federal Policy Changes .......................................................................... 12

I.

Defense of Marriage Act

What is the Defense of Marriage Act? Well, the title of the statute essentially speaks for itself. However, if you are unfamiliar with the Defense of Marriage Act, then the text below will shed some light into the purpose of the statute. Below is a quote from the House Report from the enactment of the Defense of Marriage Act. “[I]t is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. H.R. 3396, is appropriately entitled the ‘‘Defense of Marriage Act.’’ The effort to redefine ‘‘marriage’’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H.R. REP. NO. 104-664, at 12. The Defense of Marriage Act (hereinafter sometimes referred to as “DOMA”) was enacted by Congress in 1996, prior to any states enacting legislation to legalize same-sex marriage. U.S. v. Windsor, 133 S.Ct. 2675, 2682 (2103). In the Windsor case, the United States Supreme Court found the federal portion of the Defense of Marriage Act to be unconstitutional. This will be discussed at length throughout this paper. The purpose of this paper is to illustrate the effects of the overturning of the Defense of Marriage Act. Obviously, this will affect the recognition of same-sex marriages on a federal level, but it will also affect many other federal statutes and it might possibly affect your everyday law practice. There are over 1,000 federal laws in which a person’s marital status is a factor used in determining or receiving benefits, rights and privileges. Id. at 2683. As you will see throughout this paper, the striking down of the federal portion of the Defense of Marriage Act will necessarily affect each one of those federal laws. a.

DOMA Section 2, Powers Reserved to the States

Section 2 of the Defense of Marriage Act allows the states to refuse to recognize samesex marriages that were legally entered into under the laws of other states. Section 2 of the Defense of Marriage Act provides the following: Chapter 115 of Title, 28, of the United States Code is amended by adding the following: Section 1738C, Certain acts, record, and proceedings and the effect thereof. “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right of claim arising from such relationship.”

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It is important to note that Section 2 of the Defense of Marriage Act was not challenged in the Windsor case and it still remains in full force and effect. b.

DOMA Section 3, Definition of Marriage

Section 3 of the Defense of Marriage Act is the portion that was found to be unconstitutional by the United States Supreme Court. Prior to being stuck down, Section 3 provided the definition of “marriage” for purposes of federal law. The Defense of Marriage Act defined “marriage” as between one man and one woman, and that the word “spouse” referred only to a person of the opposite sex who is a husband or wife. Below is the text of Section 3 of the Defense of Marriage Act: Chapter 1 of Title 1, United States Code is amended by adding the following: “Section 7, Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” II.

United States v. Windsor

In Windsor, the United States Supreme Court struck down Section 3 of the Defense of Marriage Act as unconstitutional. Once again, this ruling only affects the federal portion of the Defense of Marriage Act. The Court did not consider the state portion. a.

Facts

Edith Windsor and Thea Spyer, New York residents, began their long-term relationship in 1963. They registered as domestic partners in 1993, when the city of New York gave that right. Windsor and Spyer were married in a lawful ceremony in Ontario, Canada in 2007. Windsor and Spyer continued to live in New York until Spyer’s death in 2009. Spyer left her entire estate to her wife, Windsor. Windsor sought to claim the estate tax exemption for surviving spouses, but she was barred from claiming the exemption by the Defense of Marriage Act. Although the state of New York recognized the marriage, Section 3 of DOMA provided that the term ‘spouse’ only refers to a person of the opposite sex who is a husband or wife. Windsor paid the taxes but filed suit to challenge the constitutionality of Section 3 of DOMA. b.

Ruling

To start, the Court in Windsor discussed the history of the enactment of DOMA. The Court noted that, “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the

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exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” Id. at 2693. The Court then found it necessary to discuss the extent of the state power and authority over marriage. State laws defining and regulating marriage must still respect the constitutional rights of persons. Loving v. Virginia, 388 U.S. 1 (1967); United States v. Windsor, 133 S.Ct. 2675, 2691 (2103). However, subject to those constitutional guarantees, the regulation of domestic relations has long been regarded as an exclusive province of the States. Id. at 2691. The Defense of Marriage Act rejects the long established concept that the incidents, benefits and obligations of marriage are uniform for all married couples within each state. Id. at 2692. The Court found that the state of New York, by its recognition of the validity of same-sex marriages performed in other jurisdictions and by its authorization of same-sex unions and marriages, sought to give further protection and dignity to the personal bond between same-sex couples. Id. at 2692. The Court found that DOMA seeks to injure the very class of people that the State of New York sought to protect, and that by doing so, it violates the basic due process and equal protection principles applicable to the Federal Government. Id. at 2693. The guarantee of equality under the Constitution of the United States “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify the disparate treatment of that group. Id. at 2693. The Court found that the unusual deviation from the customary tradition of recognizing and accepting state definitions of marriage under DOMA operates to deprive same-sex couples of the benefits and responsibilities that would normally come along with the federal recognition of their marriages. Id. at 2693. The Court further found the unusual deviation to be strong evidence that the law has the purpose and effect of disapproval of a class of people, and that the purpose and practical effect of Section 3 of DOMA was to impose a disadvantage and to stigma all who legally enter into same-sex marriages. Id. at 2693. This places the same-sex couples in a second-tier marriage, which is an unstable position. The Court found that this is demeaning to the couple, whose moral and sexual choices are protected by the Constitution and whose relationship the State seeks to dignify. Id. at 2694. Lawrence at 558. The Court held that Section 3, the federal provision of DOMA, is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. Id. at 2695. The Court reasoned that DOMA instructs all federal elected officials, and all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy that the marriages of others. Id. at 2695. The Court held that DOMA is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. Id. at 2695. III.

Texas Law

In 2003, the Texas legislature enacted its very own version of the Defense of Marriage Act which can be found in Section 6.204 of the Texas Family Code. Section 6.204 provides the following: “RECOGNITION OF SAME-SEX MARRIAGE OR CIVIL UNION.

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(a) In this section, "civil union" means any relationship status other than marriage that: (1) is intended as an alternative to marriage or applies primarily to cohabitating persons; and (2) grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage. (b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state. (c) The state or an agency or political subdivision of the state may not give effect to a: (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.” Section 2.001(b) of the Texas Family Code prohibits any clerk of any Texas county from issuing a marriage license to persons of the same sex. In addition, Article 1, Section 32 of the Texas Constitution provides that a “marriage in this state shall consist only of the union of one man and one woman,” and “this state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” Clearly, the laws of the State of Texas do not allow same sex-couples to marry. The State of Texas does not recognize legal marriages of same-sex couples from other jurisdictions, and it does not provide for any type of civil unions or other type of relationship recognition for same-sex couples. Same-sex marriages or civil unions are contrary to the public policy of this state and are void in Texas. At this point in time, our state does not provide same-sex couples who were legally married in other jurisdictions a method to dissolve their marriages. a.

Cases in Texas

The Texas Supreme Court has granted petition for review in the cases In the Matter of the Marriage of J.B. and H.B., 236 S.W.3d 654 (Tex. App.-Dallas 2010) and State v. Naylor, which both deal with same-sex divorce. b.

In the Matter of the Marriage of J.B. and H.B., 236 S.W.3d 654 (Tex. App.Dallas 2010)

In the case of In the Matter of the Marriage of J.B. and H.B., 236 S.W.3d 654 (Tex. App.-Dallas 2010), J.B. filed a petition for divorce in Dallas County. J.B. sought to divorce H.B., his alleged husband. J.B. and H.B. were legally married in the state of Massachusetts in September 2006. The parties moved to Dallas, Texas in 2008 and ceased to live together as husband and husband in November of 2008. In his petition for divorce, J.B. alleged that there were no children of the marriage, born or adopted, and he requested a division of the community property if no agreement could be reached between the parties. J.B. prayed for a divorce, that his name be changed back to his original last name and for general relief. H.B. did not file an answer to the suit. The State of Texas intervened in the suit just a few days after the suit was filed. The State intervened “as a party respondent to oppose the Petition for Divorce and defend the Defense of Marriage Act after Windsor

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constitutionality of Texas and federal law.” The State alleged that J.B. was not a party to a marriage under Texas law and that he is therefore not eligible for the remedy of divorce and that the trial court could not grant the petition for divorce without violating Texas law. The State then filed a plea to the jurisdiction and asserted that the trial court lacked subject-matter jurisdiction because J.B.’s petition demonstrated on its face that he and H.B. were not “married” as a matter of Texas law. The State asserted that section 6.204(c) of the Texas Family Code “strips courts of jurisdiction” to confer the legal status of marriage upon any relationship besides the union of one man and one woman-even if only for the purpose of granting a divorce. The trial court denied the State’s plea to the jurisdiction without a hearing. The Court held that article I, section 32(a) of the Texas Constitution and Section 6.204 of the Texas family Code violate the Equal Protection Clause of the Fourteenth Amendment. The trial court held that it had jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction and who meet the residency requirements and other prerequisites to file for a divorce in Dallas County, Texas. On appeal, the Court held that Texas courts lack subject-matter jurisdiction to entertain a suit for divorce that is brought by a party to a same-sex marriage, even if the marriage was entered in another state that recognizes the validity of same-sex marriages. The Court reversed the trial court’s order to the extent it denied the State’s plea to the jurisdiction and remanded the case to the trial court with instructions to dismiss the case for lack of subject-matter jurisdiction. The Texas Supreme Court granted petition for review in this case. c.

State v. Naylor, 330 S.W.3d 434 (Tex. App.- Austin 2011)

In the case, State v. Naylor, Angelique Naylor and Sabrina Daly were married in the State of Massachusetts on September 27, 2004. After their marriage, Naylor and Daly returned to their home in Texas. They then adopted a child and started a business in Texas. The couple separated and in January 2009, Naylor filed a Suit Affecting the Parent-Child Relationship (hereinafter referred to as “SAPCR”) in the Travis County District Court. The parties eventually settled the SAPCR and an agreed order was signed by the Court. In December 2009, Naylor filed a Petition for Divorce in the same cause number as the SAPCR. After a hearing lasting two days, the trial court tried to encourage the parties to settle because of the “legal mess” regarding the state of the parties’ business and finances. The trial court took a recess to allow the parties time to reach an agreement. The parties reached an agreement of all issues, and the agreement was read into the record and the trial court granted the parties’ divorce and approved the agreements recited into the record as a just and right division of the estate. The very next day, the State filed a Petition in Intervention, arguing that the trial court lacked jurisdiction to grant the divorce because the parties were of the same sex. The State further argued that the only manner in which to dissolve the parties’ same sex marriage would be an action for voidance under Section 6.307 of the Texas Family Code. Both Naylor and Daly sought to strike the intervention. The trial court denied the petition in Intervention as untimely and entered the decree over the State’s objection. On appeal, the Court found that the State’s intervention was untimely and since the State did not meet any of the required elements of the virtual-representation doctrine, it lacked standing to appeal. The Court held that it could not exercise subject matter jurisdiction over an Defense of Marriage Act after Windsor

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appeal in which the sole appellant lacks standing. The Texas Supreme Court granted petition for review in this case. d.

De Leon et. al. v. Perry et. al,. No. SA–13–CA–00982–OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)

As you will see, the De Leon case is of utmost importance. In De Leon, the plaintiffs challenged Texas’ prohibition on same-sex marriage as set out in Article 1, Section 32 of the Texas Constitution and the Texas Family Code. The plaintiffs claimed that the ban on same-sex marriage violates their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. Plaintiffs Cleopatra De Leon and Nicole Dimetman have been in a committed relationship since 2001. The couple has resided in Texas since that time. Since they could not marry in the state of Texas, they chose to get married in Massachusetts on September 11, 2009. In 2012, the couple became parents to a child, C. Deleon is C’s biological mother, but both De Leon and Dimetman consider themselves the child’s mothers. Because Texas does not recognize same-sex marriages, even those legally entered into in another state, Dimetman could not be considered C’s legal parent without going through the adoption process. Plaintiffs Victor Holmes and Mark Phariss began dating in 1997. Holmes and Phariss wanted to get married in Texas. They applied for a marriage license at the Bexar County Clerk’s office, but the County Clerk refused to issue a license because Holmes and Phariss are both men. The defendants in this case are Governor Rick Perry, Texas Attorney General Greg Abbott, Gerard Rickhoff, Bexar County Clerk and David Lakey, Commissioner of the Texas Department of State Health Services. e.

Equal Protection Challenge

The Court found that Section 32 of the Texas Constitution denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out of state marriage recognized, and is unconstitutional because there is no rational relationship to a legitimate governmental purpose. f.

Due Process Challenge Right to Marry – Infringement on Fundamental Rights

The Court rejected the defendants argument that the right to marry does not include the right to same-sex marriage. The Court found that the argument failed, as the Supreme Court did not adopt this line or reasoning in the analogous case of Loving v. Virginia. The Court found that the state of “Texas cannot define marriage in a way that denies its citizens of the “freedom of personal choice” in deciding whom to marry, nor may it deny the “same status and dignity” to each citizen’s decision.” Id. at 36. Since Section 32(a) categorically denies the fundamental right to marry to a class of citizens, it can only withstand a constitutional challenge if it survives strict scrutiny. The Court Defense of Marriage Act after Windsor

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found that the defendants failed to identify even a rational reason that is served by denying same-sex couples the fundamental right to marry. g.

Out-of-state Marriage Recognition

Since the Court in Windsor did not clarify whether out of state marriage recognition is a fundamental right, the Court applied a rational basis review. The defendants did not provide any specific grounds that justify the refusal to recognize lawful same-sex out of state marriages. The defendants mention public policy, but the Court found that tradition alone cannot justify the infringement on individual liberties. The Court held that, “Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process,” and that “Texas’ current marriage laws deny homosexual couples the rights to marry, and in doing so, demean their dignity for no legitimate reason.” The Court found Texas’ marriage laws denying same-sex marriages unconstitutional and granted a preliminary injunction enjoining the defendants from enforcing Texas’ ban on same-sex marriage. The Court stayed the execution of the preliminary injunction pending the final disposition of any appeal to the Fifth Circuit Court of Appeals. IV.

Other States a.

History and Progression of Same-Sex Marriage Laws

In 1993, the Hawaii Supreme Court held that the state of Hawaii’s prohibition on samesex marriage was discriminatory under the Hawaii Constitution. Baehr v. Lwein, 74 Haw. 530, 852 P.2d 44, 50 (1993). In 1999, the Supreme Court in Vermont held that the state of Vermont was required to offer all the benefits of marriage to same-sex couples. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 866-67 (1999). The Vermont legislature then created civil unions. In 2003, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment protected the sexual relations and privacy of gay men and lesbians. Lawrence v. Texas, 539 U.S. 558, 578 (2003). In that same year, the Massachusetts Supreme Court made the monumental decision that declared that the Massachusetts Constitution protected the right of same-sex couples to marry, and that the state’s ban on same-sex marriage violated its own constitution. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Since Goodridge, the laws on same-sex marriage have varied drastically from state to state. The states of California, Washington, New Mexico, Hawaii, Minnesota, Iowa, Illinois, New York, Vermont, New Hampshire, Maine, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland and the District of Columbia have legalized same-sex marriage, either through court decisions, legislation or by popular vote. The state of Colorado allows for civil unions between same-sex couples. The states of Nevada and Oregon allow for domestic partnerships for same-sex couples, and the state of Wisconsin allows for a domestic partnership that is more limited in scope than most domestic partnerships and civil unions. On December 20, 2013, the United States District Court for the District of Utah struck down Utah’s constitutional ban on same sex marriage. Kitchen v. Herbert, 2013 WL 6697874

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(Utah). The United States Supreme Court granted a stay of the District Court’s order pending appeal to the Tenth Circuit Court of Appeals. There were approximately 900 marriage licenses that were issued to same-sex couples before the stay was granted. The U.S. Attorney General has stated that the federal government will recognize those marriages for purposes of federal benefits. Similarly, in Bishop v. United States, the Court overturned the state of Oklahoma’s same-sex marriage ban, but stayed the decision pending appeal. Bishop v. United States ex rel. Holder, No. 04-cv-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014). There have been similar rulings by Federal District Courts in Virginia, Illinois, Kentucky and Ohio. Most recently, on March 21, 2014 in DeBoer v. Snyder, the United States District Court for the Eastern District of Michigan, held the Michigan ban on same-sex marriage unconstitutional. The decision was not stayed pending appeal, so again, there were approximately 300 same-sex marriage licenses issued. These marriages will be recognized by the federal government, but not by the state of Michigan. As you can see, this is a very fluid and rapidly changing area of the law at this time. V.

Federal Policy After Windsor

There are over 1,000 statutes and federal regulations that the Defense of Marriage Act controls, including laws pertaining to Social Security, taxes, criminal sanctions, Medicare and military benefits. According to a memorandum issued by Erik Holder, Attorney General of the United States, it is now the policy of the Department of Justice (“The Department”), to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize all marriages valid in the jurisdiction where the marriage was celebrated. However, the policy will only apply to individuals in valid marriages, and will not apply to individuals who have entered into a domestic partnership or civil union, if it is recognized under state law but not recognized as a marriage under the laws of the state. Following the Windsor decision, the President directed the Department to work with other federal agencies to ensure that the Windsor decision is implemented quickly and smoothly. The Department then reviewed all federal statutes and regulations that it administers or enforces. The Department will interpret the terms “spouse,” “marriage,” “widow,” “widower,” “husband,” “wife,” and any other term related to family or marital status in statutes, regulations, and policies administered, enforced, or interpreted by the Department, to include married same-sex spouses. a.

Federal Criminal Law

There are many federal criminal provisions that depend on marital status. For example, 8 U.S.C., Section 1325(c), criminalizing the entry into a marriage for the purposes of evading any provision of immigration law, 18 U.S.C., Section 115, prohibiting the act of influencing, impeding, or retaliating against a federal official by threatening or injuring a family member, where “family member” includes the spouse of the federal official. In these statutes, the references to married persons will include legally married same-sex spouses in marriages that are valid in the jurisdiction where the marriage was celebrated. The Department further provides

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that prosecutors should apply this directive prospectively for conduct that occurred on or after June 26, 2013. b.

Marital Privileges

Federal courts recognize two marital privileges, the confidential communications privilege and the testimonial privilege. Trammel v. United States, 455 U.S. 40 (1980); Pereira v. United States, 347 U.S. 1 (1954); Wolfe v. United States, 291 U.S. 7 (1934). “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfe, 291 U.S. at 14. In order for either privilege to be asserted, the marriage must be valid. Since there is no federal law of marriage, federal courts have traditionally held that the question of whether a marriage is valid for purposes of invoking the marital privilege is determined by state law. United States v. Lustig, 555 F.2d. 737, 747-48 (9th Cir. 1977). The Department will consider a marriage valid for purposes of asserting the marital privilege if the individual is or was validly married in a jurisdiction authorized to sanction marriages, without regard to whether the marriage is or would have been recognized in the state where the married individuals reside or formerly resided, or where the civil or criminal action has been brought. In a civil case where state law applies, Rule 501 of the Federal Rules of Evidence states that state law shall govern marital privilege. The Department’s revised policy after Windsor is that it will not challenge assertions of marital privilege, whether State or Federal law applies, by individuals in same-sex marriages that are valid in the place where the marriage was celebrated on the ground that the marriage is not valid in the state where the individuals reside or formerly resided. c.

Federal Taxes

Revenue Ruling 2013-17 was issued in response to the Windsor decision. There are more than two hundred provisions and regulations relating to Internal Revenue laws that include the terms, “spouse,” “marriage,” and “husband and wife.” Rev. Rul. 2013-17, 2013-38 IRB 201. It was determined that gender-neutral terms in the Internal Revenue Code that refer to marital status, such as “spouse” and “marriage,” will now include (1) any individual married to a person of the same sex if the couple is lawfully married under state law, and (2) such a marriage between individuals of the same sex. Id. at 4. Additionally, the terms “husband” and “wife” should be interpreted to include same-sex spouses. For federal tax purposes, the terms “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if they were lawfully married in a state whose laws authorize the marriage of two individuals of the same sex. This shall include any same-sex marriage that was legally entered into in one of the fifty states, the District of Columbia, a U.S. territory, or a foreign country. Additionally, for federal tax purposes, the validity of same-sex marriages will be dependent on whether the marriage was valid in the state where entered into,

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regardless of where the married couple currently resides. However, the term “marriage” does not include registered domestic partnerships, civil unions or other similar formal relationships that are recognized under state law but not recognized as a marriage under that state’s law. Id. at 5. The following information was provided by a press release issued by the U.S. Department of Treasury issued on August 29, 2013. Same-sex married couples, who were legally married in jurisdictions that recognize their marriages, will be treated as married for all federal tax purposes including income, gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor. This shall include determining filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit. As a practical matter, the Department of Treasury provides that individuals who were in same-sex marriages may, but are not required to file original or amended returns for one or more tax years still open under the statute of limitation. Typically, the statute of limitation for filing a refund claims is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. Id.at 1. However, for the 2013 tax year, legally married same-sex couples must file their income tax return as either “married filing jointly” or “married filing separately.” Id. Individual employees who purchased same-sex spouse health insurance coverage from their employer on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income. Individuals who wish to file an amended return will need to use Form 1040X. d.

Social Security Benefits

The Social Security Administration has yet to issue specific guidance on eligibility for benefits for same-sex couples, including whether eligibility will be dependent on whether the couple resides in a state that bars same-sex marriage and recognition. However, they are now processing some retirement, surviving spouse and lump-sum death payment claims for same-sex marital couples and paying benefits as they are due. They are also considering same-sex marriages when processing some claims for Supplemental Security Income. However, the income and recourses of a same-sex spouse may affect an individual’s eligibility for Supplemental Security Income or the payment amount. In addition, if an individual already receives Supplemental Security Income, he or she must report a marriage, separation, divorce or annulment to the Social Security Administration, as it may affect the individual’s eligibility for Supplemental Security Income or the payment amount. The Social Security Administration is currently working with the Department of Justice to develop and implement additional policy and processing instructions. The advice of the Social Security Administration, according to their website, is that if you believe that you may be eligible for benefits, you are encouraged to apply now to protect against the loss of any potential benefits. Applying now will preserve the individual’s filing date, which will be used to determine the start of potential benefits. There is no fine or penalty if the Social Security Administration denies a claim for benefits. There is also no penalty or fine for appealing the denial of benefits. The Social Security Administration plans to process claims as soon as

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additional instructions become finalized. Any additional questions may be addressed by contacting your local Social Security Office or by calling 800-772-1213. e.

Medicare

All beneficiaries in private Medicare plans will have equal access to coverage when it comes to care in a nursing home where the spouse lives. Prior to the Windsor decision, same-sex couples were not entitled to equal coverage and could have been forced to spend time away from their same-sex spouse and/or higher costs because their marriage was not recognized. The spouse would have had to make the choice of un-enrolling in Medicare which would result in a higher cost of care, or the spouse would have to be placed in a nursing home away from her same-sex spouse. This coverage will apply to couples that are in legally recognized same-sex marriages, without regard to where the couple currently resides. f.

U.S. Visas & Green Cards for Same-Sex Spouses

In light of the Windsor decision, the Department of State will now recognize same-sex marriages that are legal in the jurisdiction where they were celebrated. All visa applications that are based on same-sex marriages will be adjudicated in the same way that all other visa applications are adjudicated. The same-sex spouse of a visa applicant that is coming to the United States for any purpose will now be eligible for a derivative visa. The same rule will apply for step-children that are acquired though a same-sex marriage. Spouses in same-sex marriages are also now eligible to apply for green cards. g.

Military Benefits

According to a memorandum issued by the Department of Defense on August 13, 2013, the Department of Defense will work to treat all married military personnel equally. The Department of Defense will recognize all same-sex marriages that are valid in the place of celebration. All entitlements will be retroactive to the date of the Windsor decision of June 26, 2013. There are many different forms of compensation that service members may receive. All service members receive basic pay, and this is the main component of each individual service member’s compensation. There are also some forms of special and incentive pay based on the service members qualifications or special skills. All other compensation is in the form of allowances. Allowances are funds paid to the service member for specific needs, such as food or housing. Most of the allowances are increased when the service member is married. In addition to the increased compensation that the service member may be entitled to, the spouse of the service member will now be entitled to the same benefits as the spouse in an opposite-sex marriage. Some of these benefits include, a spousal identification card, TRICARE medical insurance, dependent-rate housing allowance, family separation allowance, ability to move off base to live with a spouse, command-sponsored visas, access to military installations and facilities, e.g., base, commissaries, exchanges, Morale, Welfare and Recreation centers, Joint Duty Assignments and access to legal assistance. In addition, the spouses of service members

Defense of Marriage Act after Windsor

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may be entitled to some protections under the Servicemembers Civil Relief Act, which provides protections from civil actions against service members. In order for a spouse to be eligible for benefits, the spouse must be enrolled in the Defense Enrollment Eligibility Reporting System (“DEERS”). In order for the spouse to become validly enrolled in DEERS, the service member must go to an ID Card office or DEER office and must present a valid marriage certificate. h.

Benefits for Federal Employees

The Office of Personnel Management, the Federal Government’s Human Resources Agency, is now able to extend benefits to legally married same-sex spouses of federal employees and annuitants. The procedures for enrollment will be the same as those for enrolling an opposite-sex spouse or step-child. These benefits will be available to legally married same-sex spouses regardless of where the employee or annuitant resides. i.

Miscellaneous Federal Policy Changes

The agencies that administer the Public Safety Officers’ Benefits Program, the September 11 Victim Compensation Fund and the Radiation Exposure Compensation Program will recognize same-sex marriages valid in the place where there were celebrated, without regard to where the married individuals reside. th

The United States Trustee Program issued directives to program personnel to apply the Bankruptcy Code and bankruptcy rules to same-sex married couples in the same manner they are applied to opposite-sex married couples, and to interpret references to marital status in the Code and rules to cover individuals lawfully married under any jurisdiction with the legal authority to sanction marriages. The Bureau of Prisons has issued a memorandum providing that all of its policies that are affected by marital status, including but not limited to, visitation at federal prisons and next-ofkin notifications, will be interpreted to include same-sex marriages, without regard to the laws of the state where the inmate’s spouse currently resides or where the inmate is imprisoned. Lastly, the Bureau of Alcohol, Tobacco, Firearms and Explosives will treat same-sex surviving spouses the same as opposite-sex surviving spouses for purposes of carrying on a deceased spouse’s licensed firearms or explosives business. In conclusion, as one can see, the constitutionality of bans on same-sex marriage is a rapidly evolving and changing area of the law. This area of the law will remain muddled and become more convoluted until the United States Supreme Court decides the issue.

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TABLE OF AUTHORITIES 1. United States. v. Windsor, 133 S.Ct. 2675, 2682 (2103) 2. Loving v. Virginia, 388 U.S. 1 (1967) 3. United States v. Lustig, 555 F.2d. 737, 747-48 (9th Cir. 1977) 4. Wolfe v. United States, 291 U.S. 7 (1934) 5. Pereira v. United States, 347 U.S. 1 (1954) 6. Trammel v. United States, 455 U.S. 40 (1980) 7. Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) 8. DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014) 9. Kitchen v. Herbert, 2013 WL 6697874 (D.Utah) 10. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003) 11. Lawrence v. Texas, 539 U.S. 558, 578 (2003) 12. Baehr v. Lwein, 74 Haw. 530, 852 P.2d 44, 50 (1993) 13. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 866-67 (1999) 14. H.R. REP. NO. 104-664, at 12. 15. Internal Revenue Service, Rev. Rul. 2013-17 16. After DOMA: Military Spousal Benefits, http://www.lambdalegal.org/publications/afterdoma-military-spouses#4 (last visited April 9, 2014). 17. Frequently Asked Questions U.S. Visas for Same-Sex Spouses, http://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs.pdf (last visited April 9, 2014). 18. Frequently Asked Questions for Individuals of the Same Sex Who are Married Under State Law, http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-SameSex-Married-Couples Frequently Asked Questions for 19. Frequently Asked Questions for Same-Sex Couples, https://faq.ssa.gov/link/portal/34011/34019/ArticleFolder/407/Same-Sex-Couples Frequently Asked Questions for 20. Memorandum from Chuck Hager, U.S. Secretary of Defense (Aug, 13, 2013) (on file with the Department of Defense). 21. Memorandum from Eric Holder, United States Attorney General (February 10, 2014) (on file with the Office of the Attorney General). 22. Memorandum from Jessica L. Wright, Under Secretary of Defense (Aug. 13, 2013) (on file with the Department of Defense). 23. Military Compensation, http://militarypay.defense.gov/pay/index.html (last visited April 9, 2014). 24. Press Release, U.S. Department of Health & Human Services (August 29, 2013) (on file with U.S. Department of Health & Human Services). 25. Press Release, U.S. Department of the Treasury (August 29, 2013) (on file with U.S. Department of the Treasury). 26. Program Operations Manual System, U.S. Social Security Administration, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210800 (last visited April 9, 2014).

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