The US Supreme Court’s long-awaited opinions on two cases dealing with gay marriage are markedly different, but both belong in the “win” column for advocates of marriage equality.
United States v. Windsor is the more sweeping of the two opinions. In Windsor the Court ruled 5-4 that Section 3 of the Defense of Marriage Act (DOMA) violated the United States Constitution. This means that the federal government can no longer refuse to recognize same-sex marriages in Washington State, or in those 12 other states and the District of Columbia where such marriages are legal.
For same-sex couples in Washington there will be important changes as a result of Windsor. The federal government will now treat same-sex couples who are legally married and residing in Washington just like it treats opposite-sex married couples. (Note: this does not apply to domestic partners, although most domestic partnerships will be automatically converted to marriages on June 6, 2014.)
Same-sex spouses will be able to sponsor their non-citizen spouses for immigration purposes, just like opposite-sex spouses can. All married Washington couples will file their 2013 federal income tax returns as married couples. (This might mean paying more or less in taxes, depending on individual circumstances.) Social security and veteran’s benefits will be available to surviving same-sex spouses, as long as the couple resided in Washington (or another marriage recognition state) at the time of the death and was actually married.
While these consequences of Windsor are relatively clear, its application raises new legal questions. What happens if, say, a Washington married same-sex couple decides to move to Idaho, which doesn’t recognize same-sex marriages? Do the couple’s marriage benefits end? Do they have to file their taxes differently after they move?
What about Idaho couples who come to Washington to get married and then return home to Idaho? Those couples will retain some marriage benefits—like immigration status, which turns on whether the marriage was lawful where it was celebrated. But other benefits—like social security, which turns on whether the marriage is valid where the couple lives—will be denied. And again, there are some issues, like filing taxes as a married couple, where the law isn’t quite clear.
The Obama Administration may really make a difference here. The President has already directed members of the administration to implement Windsor. Over the coming weeks and months expect a stream of federal actions, some more and some less formal, designed to ensure the broadest recognition of same-sex marriages permissible. Regulations which now prevent that Idaho couple from receiving social security benefits may even be changed.
Still and all, it seems clear that same-sex couples will continue to occupy a complicated legal world. Those that live in marriage-recognition states will be much better off. Those that live in non-recognition states will be a little better off than before, but all same-sex couples will still need to be mindful of state boundaries and varying laws.
Important rights, perhaps most notably those involving parentage, are creatures of state, not federal law, and thus will be unaffected by Windsor. Same-sex couples in non-recognition states will remain second-class citizens. Even those who live in marriage recognition states may find themselves at a disadvantage when they travel.
In contrast to Windsor, Hollingsworth v. Perry — the second case considered by the Supreme Court and the one dealing with California’s Proposition 8 ban on same-sex marriage — is somewhat anticlimactic. In the California case, the High Court refused to decide whether the Constitution requires that same sex couples be allowed to marry. Instead, the court decided that the case should have ended when the California governor decided not to appeal the trial court's original ruling against Proposition 8.
While the Perry case will have no direct impact here in Washington, and is of limited impact outside of California, it is a victory. The Supreme court’s non-decision will leave the trial court opinion that struck down Prop. 8 intact, thus re-allowing access to marriage for California’s gay couples. At least for now. But those who had looked for Perry to open the door to gay marriage in all 50 states came away from this week’s ruling disappointed.