NY DOMA ruling: The U.S. needs to get real about gay marriage

Straight Allies protest/ wikipedia

SAN DIEGO – October 19, 2012 –The U.S. Supreme Court ruled interracial marriage was legal in 1967. It still took until November 2000 for Alabama to become the final state to legally remove the interracial marriage ban, 33 years after the Supreme Court declared these laws unconstitutional.

Today this scenario is playing out all over again over the right of gay couples to marry. Will it take several more decades for society to extend equal rights under the law to every segment of society?

Thankfully, it seems not. State courts are pushing toward a resolution sooner than later at the federal level, the U.S. Supreme Court. The most recent ruling came Thursday in the State of New York. It can’t come soon enough.

The 2nd Circuit Court of Appeals held that the Defense of Marriage Act (DOMA), which defines “marriage” as a legal union between a man and a woman, is unconstitutional. This follows the similar ruling in June in the Commonwealth of Massachusetts by the 1st Circuit Court of Appeals.

In New York, 83-year-old Edith Windsor sued the federal government for charging her $363,000 in estate taxes after being denied tax benefits granted to surviving spouses. Windsor was not legally married to her same-sex partner Thea Clara Spyer upon her death in 2009 but the case argues the state of New York would have indeed recognized them as married upon her death. Windsor therefore didn’t believe she should be obligated to pay the taxes.

The Court agreed, writing “Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.” The Court said the Defense of Marriage Act isn’t creating helpful uniformity. It’s creating discord.

Right now, it doesn’t have much meaning beyond this single case, but the ruling adds fuel to the fire over whether the federal government can legally continue to deny recognition to marriages that are recognized in the states that allow same-sex marriage.

“Discord” hardly describes it. Today we have a crazy quilt of laws from state to state, wrecking havoc on families, keeping lawyers awake at night trying to figure out how to navigate common family law issues regarding marriage, divorce, child custody, support, medical decision-making, estate planning and taxation.

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia currently issue marriage licenses to same-sex couples. Same-sex marriage was legalized in Washington State in February, but it faces a ballot challenge November 6. Maine, Minnesota and Maryland are also voting on the issue next month.

In California, voters approved a controversial initiative outlawing same-sex marriage, but it was ruled unconstitutional for singling out gays and lesbians for discrimination, and overturned by a federal appeals court. This is the case that seems likely to come before the U.S. Supreme Court.

Dozens of other states have passed “defense of marriage” laws. In those states, even if you got married legally somewhere else in the U.S. or in one of the foreign countries that recognizes same-sex marriage like Canada, Spain, or South Africa, that state will not recognize your marriage. This could mean being frozen out of benefits provided to heterosexual couples, no tax benefits, no protection from discrimination and other legal rights.

So what if your marriage breaks up? Can you get divorced? Probably not; at least, the decision isn’t up to you, it’s up to the local family court. If you can’t get a divorce decree, and then you move to a state where marriage is legal, you can’t get married because you aren’t legally divorced.

What about child custody? If legal protections weren’t otherwise put into place without regard to any legal same-sex marriage, couples will face a nightmare of problems about parental rights, adoption, visitation, and child support. When one parent is the biological parent, all bets are off for the spouse if this wasn’t worked out in advance.

Those who would argue that civil unions can guarantee all the same rights afforded by marriage to same-sex couples are incorrect. If nothing else, having to go to an attorney to put into place the many protections the law gives to married couples is time-consuming and expensive.

With the laws changing and precedents being set daily, you better make sure you’re working with an attorney who is a family law specialist up on this shifting landscape, or you and your rights could be trampled.

The Court also wrote that federal and state law shouldn’t be concerned at all with “holy matrimony,” which is where much of the opposition truly lies. “Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.”

This should never change, and it doesn’t need to. It’s time to get practical, whatever your personal beliefs. We need to separate both legally and morally the religious or spiritual definition of matrimony, and the legal definition of a marriage under this country’s civil laws. We need to make the legal definition uniform, applicable to all in all 50 states. Courts won’t be clogged and families will be healthier and happier because fairness will exist. Lawyers will lose some income. They’ll live.

Then we could move on to things that are really difficult like curing disease, fixing our economy, eradicating poverty and illiteracy, preventing bullying, you get the idea.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.

Copyright © 2014 by Fleischer & Ravreby, Attorneys at Law


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