DOMA Series, Part 1: What Is “DOMA,” Anyway?

By Kate Paine, Esq.

Earlier in the month, two firsts occured in the fight against the Defense of Marriage Act (commonly referred to as “DOMA”). First, on Monday, April 2, 2012, five legally-married, bi-national (one spouse is not a U.S. citizen), same-sex couples filed a lawsuit challenging DOMA’s constitutionality (legality) as applied to all legally-married, bi-national, same-sex couples trying to legally remain together in the United States. Then, on Wednesday, April 4, 2012, the First Circuit Court of Appeals became the first federal court of appeals to hear a case involving DOMA’s constitutionality.

Even though DOMA has once again taken legal center-stage, many people whose lives are affected by the law have never heard of it. This post is the first in a multi-part series designed to explain the origin of the law, its purpose and effects, and the legal war currently being waged in the hopes that either Congress repeals the law or the Supreme Court determines that it is unconstitutional (and unenforceable) because it unlawfully discriminates against legally-married gay couples.

First, it is important to understand that, unlike what you may have heard, DOMA does not prohibit or prevent states from allowing same-sex marriage. State governments, not Congress (i.e. the federal government), have the power to create laws regarding who may marry. Instead, DOMA places certain limits on the rights under federal law of same-sex couples legally married under state law.

The first of DOMA’s two main sections (Section 2) essentially says that no state is required to recognize a same-sex marriage, even though the marriage was lawfully entered into in another state. So, for example, a state like Pennsylvania, which has a law prohibiting same-sex couples from marrying, does not have to recognize the marriage of two men or two women who legally wed in any of the states currently marrying same sex couples (Massachusetts, Vermont, Connecticut, New Hampshire, New York, and Iowa).

DOMA’s second main section (Section 3), which is the provision most often challenged in court, says that, for federal purposes, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” means only a person of the opposite sex who is a husband or a wife. As a result, whenever a provision in a federal law contains the word “marriage” or “spouse,” the provision will apply, respectively, only to an opposite-sex marriage or an opposite-sex husband/wife.

According to a study done in 2004, the impact of Section 3 is that lawfully-married same-sex couples are denied at least 1,138 federal benefits, protections, rights, or responsibilities. The recent deadline for filing taxes presents a timely example of one of the federal benefits legally-married same-sex couples are denied. State and federal tax forms allow an individual to file as “single,” “married filing jointly” or “married filing separately,” which, in turn, may affect the amount of money an individual or a couple has to pay the government or will be refunded by the government. Because, for federal purposes, only an opposite-sex couple constitutes a “married couple,” same-sex spouses lawfully married under state law may only select the “single” filing status on their federal tax return.

Another example comes from the Federal Employees Health Benefits Program. This Program provides health insurance to federal civilian employees, like postal workers, and their family members. Under the Program, “a member of family” is defined as either “the spouse of an employee” or “an unmarried dependant child under 22 years of age.” Because this Program was enacted by a federal law, and because Section 3 of DOMA says that any federal law using the term “spouse” means only a person of the opposite sex who is a husband or a wife, a same-sex individual to whom the federal civilian employee is legally married will not qualify for health insurance under the Program.

Interestingly, DOMA represents the first time that Congress has ever created a federal definition of the words “marriage” or “spouse.” Before 1996 (the year in which Congress enacted DOMA), the federal government had always deferred to state definitions of marriage in determining whether a couple seeking benefits under a federal law was “married.” For example, if state X allowed individuals to marry at age sixteen, whereas state Y required individuals to be at least eighteen years-old, marriages between sixteen year-olds entered into in state X and marriages between eighteen year-olds entered into in state Y were both considered valid marriages under federal law. So, what caused Congress to change its historic respect for states’ determination of what constitutes a valid marriage?

Commentators and judges have noted that DOMA came on the heels of a 1993 case (Baehr v. Lewin) in which the Hawaii Supreme Court indicated that Hawaii’s state constitution might require the state to allow same-sex couples to marry. As discussed previously, DOMA does not affect a state’s ability to legalize same-sex marriage in that state. Nevertheless, the Congressional record (which contains the transcript of the discussions between the members of Congress when determining whether to pass DOMA) makes clear that Congress, as a whole, was driven by the desire to defend “the institution of traditional heterosexual marriage,” in part because it feared that the recognition of same-sex marriages might be “the final blow to the American family.” The record is also filled with statements reflecting the stereotypes members of Congress had about, and the hostility they felt toward, non-heterosexual couples and individuals.

If you are like me, then the one thing that you remember from your high-school American History class is that the government is not allowed to discriminate against a group of people just because (whether secretly or openly) it does not like or approve of that group. Because this is exactly what DOMA seems to do, you may be wondering how Congress was able to pass such a law and how such law is still on the books.

Stay tuned, as this will be the subject of the next post in our DOMA series. Of course, feel free to leave a comment below if you have any questions about, or reactions to, what has been discussed so far.

Legal and Financial Planning for Gay and Lesbian Couples

Join us for a reception and discussion during the Pittsburgh Pride Event.

Wednesday, June 6, 2012
6:00 – 7:30 p.m.

Reception and discussion by below-named speakers:

Buchanan Ingersoll & Rooney PC
Maureen B. Cohon, Esq.
Elizabeth J. Poggi, Esq.
Nontraditional Couples & Families Practice Group

Fifth Third Bank
Robert Lepre, Senior Vice President
Life Partner Services

Please RSVP by Monday, June 4, 2012, to
Maureen B. Cohon – 412-562-1835 or maureen.cohon@bipc.com

Space limits us to 50 attendees

Program will be held at:
WQED Multimedia
4802 Fifth Avenue
Pittsburgh PA 15213
Parking Available

The Top 10 Issues Facing Nontraditional Couples and Families

By: Mariah L. Passarelli, Esq.

Why should you care about legal issues that nontraditional couples are facing? How is the landscape changing for gay, lesbian and other nontraditional couples and families in your state and across the country?  What do you need to know to ensure that you and your loved ones are protected?

We launched nontraditionalcouples.com to help you answer these questions and better understand how the laws impact you.  

Our first post outlines the 10 reasons why you need to read this blog. Check back weekly for blog posts that further detail these, and many other, important issues.

1. Marriage

With a growing number of states legalizing gay marriage (eight, as of the date of this writing), the law in this area is all over the map. Literally. It is important to know your rights in the state where you live. What happens if you get married in another state? What are the ins and outs of domestic partnership laws? What is a common law marriage, is it acceptable in my state and do we qualify?

2. Domestic Partner and Cohabitation Agreements

No one getting together thinks that they are going to break up, but the fact is many of us do. We’ll look at the need for Domestic Partner and Cohabitation Agreements and the types of pitfalls you can avoid by having one in place when things are going well, rather than waiting until there’s a problem.

3. Adoption

The adoption process can be a complicated emotional rollercoaster for any prospective parent. For nontraditional couples, the legal road to a successful adoption can be even more complicated and filled with dead ends. Future blog entries will look at domestic and international adoption for nontraditional couples and single parents, as well as legal issues involving surrogacy, fertility options, and second-parent adoption.

4. Taxes

Related to the fluctuating legal status of gay marriage in the United States, the tax picture is anything but clear. When you get married in a state like New York, can you file your state taxes jointly? What about your federal taxes? If you mark “single,” is it a lie? If your partner puts you on the deed to a house that he already owns, is that a taxable event?

5. Insurance

There’s a laundry list of insurance available out there: life insurance, health insurance, renters insurance, disability insurance, long term care insurance, homeowner’s insurance. It can make your head spin. Despite your best efforts, are you really covered? If you own a house and you are not both on the deed, is your partner covered by the homeowners insurance? We’ll take a look at areas where nontraditional couples and families might be leaving themselves at risk and not even know it.

6. Joint Real Property
Owning a home with your significant other should be pretty simple, right? Absolutely not! Unlike traditional married couples, when nontraditional couples own join real property the law is anything but clear. What are the tax consequences if you break up and need to transfer the house from one joint owner to the other? Could a bankruptcy by one owner jeopardize the house? We’ll look at the pros and cons, legal ramifications and realities of putting your partner on the deed (or not).

7. Estate Planning
Estate planning should be everyone’s “problem.” However, the legal safety nets set up to protect the assets of traditional couples and families often leave nontraditional folks out in the cold. As such, the importance of good estate planning for nontraditional couples and families cannot be over emphasized. Who will get your assets upon your death? What will happen to your debts? Who should take care of your pets?

8. Children
There’s more to this than just adoption. With many countries (and even some U.S. states) banning single parent and same sex adoption, nontraditional couples are turning to solutions such as surrogacy and co-parenting arrangements. We will look at legal protections for these families, as well as address other related issues including child custody, authority for school and medical decisions, and ways to legally protect the rights of co-parents when formal adoption is not an option.

9. Employment Discrimination
United States civil rights laws still do not protect against discrimination on the basis of sexual orientation and/or gender identity. Increasingly, however employers, local municipalities, counties, and cities have adopted anti-employment discrimination provisions that provide some protection for the GLBT community. We’ll take a look at these protections. As an employer, what are the best practices for making my workplace GLBT-friendly? As an employee, what are my options if I feel I have been discriminated against or harassed? Do I have the same rights in the workplaces as my heterosexual counterparts?

10. Power of Attorney
Often swept under the rug as a bi-product of estate planning, powers of attorney are important tools that should be a part of any nontraditional couple’s or family’s arsenal of legal resources. Powers of Attorney make it possible for one half of a couple to make joint financial transactions and, perhaps more importantly, medical decisions. They can be triggered to take effect only when the other half of the couple is incapacitated, or set up to be used as a convenience feature that avoids joint trips to the bank. What kind of power of attorney should you have? When should it kick in? How much authority should it grant? We’ll take a look at both financial and medical powers of attorneys and discuss some pitfalls to avoid in creating these important documents.

We hope through this review of the Top 10 you’ve gained a better understanding of some of the legal issues that nontraditional couples and families face.