“Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense support. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” —Supreme Court Justice Kennedy
These words set the tone for a historic decision from the United States Supreme Court, striking down the “Defense of Marriage Act,” or DOMA. While I, along with thousands of others, poured into the streets to celebrate, the celebrations were tempered by questions. What does this mean for Wisconsin? What does this mean for friends in other states? Some answers are very clear. People who live in states with marriage equality now have full marriage equality in line with their heterosexual counterparts. What is less clear is how this will impact people in Wisconsin and states that continue to hold discriminatory laws.
Let’s start with the good news, and make no mistake, this was a great decision for us. Couples in states that provide full marriage equality will soon have the more than 1,000 rights and obligations of marriage found in federal law. These protections can be very significant, such as in the case that was before the Supreme Court. Under DOMA, after her spouse died, Edith Windsor was required to pay $360,000 in estate taxes that no other married couple would have to pay. Now that DOMA is dead, she will be refunded that money, and couples who reside in states with marriage equality will also be protected from estate taxes for assets transferred to spouses upon death. The demise of DOMA will also impose some federal obligations on spouses related to taxes, and in some cases pensions and other areas.
Most of the questions about the impact of this decision relate to the tremendous uncertainty regarding how this decision affects people in states that do not have marriage equality. This uncertainty was the subject of Justice Scalia’s scathing dissenting opinion. Justice Scalia, who has a long history of animosity to LGBT citizens, predicts that the wording in the majority decision will ensure that—though it allegedly applies only to states that have marriage equality—it will actually pave the path to marriage equality throughout the nation. While I must admit to choking a bit as I write this, I agree with Scalia on this point. The foundation for the decision is equal protection to citizens.
Justice Kennedy wrote, “[DOMA] 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 the community and in their daily lives.” This sentence was followed by examples of how DOMA harms citizens. Now substitute any number of laws for the word DOMA, and see whether there is any difference on the impact. In Wisconsin, for example, is there any legitimate reason same-sex parents can’t both adopt their children while heterosexuals can? Does that humiliate children and demean the couples? You bet it does. Marriage and adoption equality is going to happen. But what does it mean now?
First, unlike New York, Wisconsin does not have a law accepting all valid marriages from other states. Indeed, the constitutional abomination amendment specifically denies recognition of valid same-sex marriages. This decision does not reverse the amendment. Those who currently have valid marriages or who get married now can’t expect full marriage equality if they live here. I am confident that will change.
As I write this, all federal agencies are responding to the decision. The IRS will issue guidelines regarding how they will treat such couples for tax purposes. Federal pension plan administrators, military forces, and all other federal agencies will be drafting new policies and new advisories to address the changes. The first stage of this journey will include a patchwork of rights and obligations that will apply to federal laws, but not their state counterparts. Because there will be a great deal of uncertainty and ongoing legal development, it is very important not to rush into any action presuming that you will have full federal recognition. People could inadvertently make a mistake that could result in financial harm. Instead, take a deep breath, give the attorneys and tax professionals some time to analyze the many directives and advisory memos that will be forthcoming.
Several organizations are monitoring and reporting on the developments as they are issued. For example, lambdalegal.org is a great resource. Check there frequently as things develop. I will also continue to monitor the developments and post Wisconsin-specific articles on my website.
It is my hope that this decision will cause legislators to reflect upon the rash of unnecessary and discriminatory laws they imposed and that have caused so much harm and distress to their fellow citizens. This decision has made it abundantly clear that the highest court in the land rejects such discrimination as a violation of equal protection. I submit to you (and if necessary, to a court) that the citizens of Wisconsin deserve the same protection and equality as the citizens of Iowa, New York, and the rest of the states
Michele Perreault is an attorney for DeWitt Ross & Stevens. Her practice covers three primary areas: family law, litigation, and city prosecutor.