Same Sex Marriage Comes To Missouri? Not Yet…But Likely Soon…

On behalf of The Marks Law Firm, L.L.C. posted in Same Sex Marriage on Wednesday, June 26, 2013

As we have reported in earlier blog posts, the United States Supreme Court had two key cases this term with the potential for monumental change on the issue of same sex marriage. Yesterday, the Supreme Court closed its term by issuing its opinions in those two blockbuster cases.

First, in United States v. Windsor, the Court considered the constitutionality of one section of the Defense of Marriage Act (DOMA), which for federal purposes defines marriage as exclusively between a man and a woman. Because of DOMA, same sex couples legally married under the laws of one of the dozen states or several countries that recognize same sex marriage cannot enjoy the same benefits as heterosexual unions, from filing a joint income tax return, to health benefits to avoiding estate tax issues. Edith Windsor and her partner of forty years, legally married in Canada, resided in New York when the partner passed away. Edith sought to take advantage of the estate tax exemption for married couples, but she could not because of DOMA, costing her $363,000 in estate taxes. She challenged the law in federal court. The Supreme Court, by a vote of 5-4, in an opinion authored by Justice Kennedy, ruled in her favor and found the section of DOMA unconstitutional. The Court noted that DOMA unfairly created two classes of people – heterosexual unions and homosexual unions – and singled out the latter for negative treatment. The Court rested its decision on two premises. First, states traditionally have the right to define marriage, and DOMA infringes on the right of states to create a right for same sex couples to marry in violation of longstanding federalism principles. Second, the Fifth Amendment gives people a right to equal treatment under the law, and DOMA deprives same sex couples of the right to equal dignity as heterosexual couples by precluding them from enjoying the same status and benefits. In an eloquent passage, Justice Kennedy writes:

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

The upshot of the Windsor decision is that any same sex couple married lawfully in one of the states that sanction same sex marriages may not be denied any of the federal benefits that heterosexual married couples receive. If a same sex couple marries legally in one of those states but chooses to reside in another state that does not recognize same sex marriage, the federal benefits must still be available to them, and President Obama stated already that the Justice Department will immediately work on rewriting all relevant federal rules and regulations to assure that no lawfully married same sex couple will be denied benefits regardless of residence.

The question of state benefits remains unanswered after Windsor. Another section of DOMA creates an exception to the Full Faith and Credit Clause that would allow a state that does not recognize same sex marriage to deny that marriage recognition in its state. It seems unlikely that this section of DOMA could stand a legal challenge based on the reasoning of Windsor, but the Court did not address that question so we will have to wait and see. Consequently, a Missouri same sex couple legally married in Massachusetts could not claim state benefits like filing a joint state tax return or seek a divorce – yet.

The Court also considered another “blockbuster” case on same sex marriage, Hollingsworth v. Perry, concerning the constitutionality of Proposition 8 in California, a ballot initiative that prohibited same sex marriage. A federal district court found Prop 8 unconstitutional and the Attorney General of California would not defend the law on appeal. The Supreme Court, by a vote of 5-4, in an opinion by Chief Justice Roberts, did not address the merits because it found that the party bringing the appeal on behalf of the State of California lacked standing to do so. As a result, the Court “punted” on the central issue that could have made same sex marriage legal in all fifty states. For now, the Court will have to wait for a proper case in the future to answer that question. But now California becomes the twelfth state to allow same sex marriages.

Yesterday represented a watershed day in our nation’s history – a civil rights moment that will lead to an end to discrimination against gay and lesbians under the Constitution.

If you have questions about same sex marriage or divorce in Missouri – contact us, we can help.