I Do, but Do the Courts?

I do, I do: if the Supreme Court agrees that Prop 8 is unconstitutional, will the California case have any impact on Texas? It depends on how the court reaches its decision.

Understanding the U.S. Supreme Court marriage cases
by Connie Moore • Debra Hunt • Joshua S. Myers

The United States Supreme Court announced last December that it would review two cases that will affect same-sex marriage rights. The impact of these decisions has been a topic of much speculation among legal scholars and practicing lawyers alike. Although it is impossible to predict what the Supreme Court will decide, many people are already planning weddings. Before you set your date, read on to learn more about how the Supreme Court decisions might affect you.

What are the issues in the two cases that the Supreme Court will be reviewing this year?
The California case will determine whether Proposition 8 is unconstitutional. Prop 8, which was passed by California voters in 2008, nullified the previous California state court cases allowing same-sex marriages to be legally recognized in California. The courts in California overturned Prop 8, ruling that the voters do not have the ability to take away a right previously given by the state government. Supporters of Prop 8 have appealed to the U.S. Supreme Court, and are asking to re-instate this law banning same-sex marriage in California.
The New York case challenges the federal Defense of Marriage Act (DOMA) Section 3, which defines marriage as only being between a man and a woman for federal benefits purposes. In this case, a surviving spouse of a same-sex couple who was legally married in New York was denied the federal estate tax marital deduction for her wife’s estate, resulting in a tax bill that exceeded $350,000. If the marriage was recognized for federal tax purposes, there would be no tax due. Lower courts have declared Section 3 of the federal DOMA to be unconstitutional. A congressional standing committee called BLAG (Bipartisan Legal Advisory Group of the House of Representatives) is defending the federal DOMA because the Obama administration refuses to do so.

If the court agrees that Prop 8 is unconstitutional, will the California case have any impact on states like Texas, which have a state constitutional ban on same-sex marriage?
The answer to this question will depend entirely on how the Supreme Court reaches its decision. In the event the court upholds the lower court rulings in California that dispose of Prop 8, there are several legal theories available that it can use to reach this conclusion. First, the court can rule that the proponents of Prop 8 do not have the legal right to challenge the previous cases. This theory would allow same-sex marriage to be recognized in California but would not affect any other state’s laws. Second, the court can rule on the merits, finding that citizens in general may not vote to take away rights previously granted by state governments. This theory would only affect states where such voter measures are being considered. Finally, the court could issue a blanket ruling that all state laws prohibiting same-sex marriage are unconstitutional. A ruling under this theory would have a direct impact on states like Texas that have a constitutional ban on same-sex marriage.

What about the New York case? If the court rules in favor of requiring the feds to recognize same-sex marriage, what does that mean for married same-sex couples and federal benefits?
As in the California case, the impact of the New York case depends entirely on how the Supreme Court reaches its conclu-
sion. If the Court determines that the parties in the case do not have the right to appeal, then the lower court’s ruling will stand and the surviving spouse will be entitled to have her marriage recognized and her tax payment refunded. That determination would not affect anyone outside of this particular case. If the court allows the appeal to proceed and rules on the merits, it will determine that Section 3 of the federal DOMA is unconstitutional for all purposes. Under this type of ruling, the federal government would have to recognize all same-sex marriages of couples who legally marry under state law. It would not be able to deny federal benefits that it offers to other legally married couples, and it would have to apply those benefits to legally married same-sex and opposite-sex couples uniformly.

For federal benefits purposes, will it matter if the same-sex married couple lives in a non-recognition state like Texas?
For those benefits that are entirely federal (such as income tax, immigration, and Social Security), it’s expected that benefits will be uniformly available and it will not matter where the married couple lives. However, for benefits that are federally provided but state administered, there likely will be litigation for marriage enforcement in non-recognition states before the matter is completely settled.

When can we expect a ruling?
The court is scheduled to hear oral arguments in both cases during the last week of March, and should issue its rulings sometime in June before the end of term.

Moore & Hunt is the first women-owned boutique law firm in Houston to openly focus on lesbian, gay, bisexual, and transgender issues. Operating in the same location since 1987, the firm is comprised of attorneys Connie Moore and Debra E. Hunt. Moore works with families of all types with formation issues (adoption, surrogacy, and parentage in assisted reproduction) and family dissolution (divorce and custody litigation). Hunt concentrates on personal document drafting (wills, trusts, and powers of attorney), estate planning, probate litigation, contract negotiations and disputes, corporation and small-business formations, and real-estate matters. Both attorneys are members of the National Family Law Advisory Council of the National Center for Lesbian Rights. The firm is a part of the cooperating attorney network of the Lambda Legal Defense and Education Fund. Moore and Hunt are charter members of the Texas State Bar LGBT Law Section. Moore has been trained in collaborative family law and is a strong believer in the collaborative model to resolve family disputes. Joshua S. Myers is a recent graduate of South Texas College of Law.


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