SCOTUS Issues DOMA Opinions

By Attorney Gregg Herman
June 26, 2013

By now everyone knows that the United States Supreme Court issued two decisions today which appear to be significant victories for the gay rights movement.

As I’ve previously expressed, I support same-sex marriage for the following reasons:

Moreover, the legal situation under the Defense of Marriage Act (DOMA) is confusing.  For example, in a state which allows same-sex marriage, the parties must file joint (or married filing separately) income tax returns but, for the same year, must file single federal tax returns.  In fact, it was a tax situation which was the basis of one of the cases decided today.

In addition, if a couple is married in a state which allows same-sex marriage, but both move to a state which does not (like Wisconsin), their legal status is quite confusing.  They cannot get divorced in Wisconsin as we don’t recognize same-sex marriage.  They cannot get divorced in the originating state as neither has residence.  So, they are in a legal limbo which can lead to all sorts of complications.

Without having read the full decision yet, it appears the first case clears up the issue regarding DOMA creating confusion regarding spousal rights and benefits for such things as life insurance and retirement beneficiaries.  It is not as clear to me that the second case is as broad as it seems as the ruling was based on lack of standing.  It is interesting that the majority consisted of Chief Justice John Roberts, Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.  What an interesting mix of conservatives and liberals!

In fact, as sometimes occurs in the law, interesting juxtapositions can occur.  Here, for example, “state rights,” normally a mantra for conservatives, becomes important to liberals where more and more states favor same-sex marriage.

One theory of American jurisprudence is that we have 50 (51, if you count the District of Columbia) laboratories.  Therefore, states can learn from each other regarding the effect of legislation.  While sometimes this operates better in theory than practice, this appears to be one of those instances where by watching states which have legalized same-sex marriage, there may be an effect on other states.

In short, time in and of itself, may provide an answer to this issue, which would be far preferable to the law imposing it.  If so, the SCOTUS by nudging, but not shoving, the law in the right direction, may have done society a great service today.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.