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Ms. Toad

(34,062 posts)
7. The first statement is overly broad.
Thu Jun 27, 2013, 09:23 PM
Jun 2013

Here is their page heading :

Committed same-sex couples who are legally married in their own states can now receive federal protections - like Social Security, veterans' benefits, health insurance and retirement savings.


Which is consistent with how I read the opinion.

The challenge comes in that the Supreme Court defined "in their own states" - well - to be kind - - they told us to pay no attention to the man behind the curtain, leaving it to be pulled aside by future litigants in future court cases. To be unkind - the conclusion they reached, while wonderful, is not legally supportable without declaring all of DOMA unconstitutional and mandating state recognition of interstate and international marriages. Hence the "man behind the curtain" routine.

Mixed gender foreign (meaning out of state) marriages are instantly recognized by the state of residence, as are originating state marriages when the couple moves elsewhere. The rule has been (since the Loving v. Virginia days) (1) is the marriage legally valid when and where it was created and (2) if the answer is yes, all other states must recognize it.

So nothing mattered except the validity where it was entered into (with some odd, very small exceptions). Until DOMA and all the mini-DOMAs and presumed analysis in states which had gender specific marriage laws. Those impacted #2.

For Edie Windsor. at the time of creation her marriage was legally valid in Canada when created - but at that moment - it was not recognized in New York. The moment of creation is the only time the Feds, through the states, ever look at to determine the validity of a marriage (NPR and the New York Times commentary notwithstanding).

The feds even go so far as to reach some very unusual results as a result of their position that nothing which happens later matters) One of those odd results is in the field of Federal taxes (which NPR and the New York times both said based on the status in the state of residence and/or sometime after the inception of the marriage). The IRS has quietly recognized (and has recognized for a couple of years) same gender marriages. A very small class of same gender marriages - those marriages which were mixed gender at the time of inception, but become same gender as the result of one spouse transitioning to the opposite gender. Their analysis hinges on nothing later changing the legal status of a marriage that was legal at its inception.

But - in sharp contrast - the evaluation of whether Edie Windsor was married hinged on an event which occurred after the date of her marriage - a change in marriage laws in New York. Something which generally has no power to change the legal status of any existing relationship.

And - the Supreme Court didn't say why it used this nearly unprecedented - and legally inconsistent review point, even if all we are looking at are IRS decisions. So until they clue us in (via future decisions) it is extremely hard to know which review point is the right one for any other situation.

Personally - I expected them to punt, since I've been wrestling with this paradox nearly since the case was filed. I couldn't make it work to give the win to the sympathetic plaintiff, in any legally coherent manner, except punting on standing, or declaring the entire thing unconstitutional. And I couldn't imagine the latter so I expected the former.

Instead they took the route of the man behind the curtain - which makes things really hard except for the status at a given moment in time when the couple lives in a state that recognizes their marriage - since the analysis they applied (evaluating the marriage at the moment the couple interacted with the IRS) seems to me also to mean they lose the federal rights the moment they move to a state which does not recognize their marriage - because the next time they interact with the IRS the feds will apply the same analysis with a different result.

But all the craziness their approach was guaranteed to create is probably a good thing, because I don't think there is any way for them not to continue the federal dismantling this decision started.
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