Category Archives: Law Suits

Supreme Court to Hear DOMA Case on March 27th: Same-Sex Married Couples Able to File Jointly in 2013?

23 Saturday Mar 2013

Posted by in Law Suits, Legislation, Marriage, RDP Tax Returns, Taxes

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The time has finally come. On March 27th, the Supreme Court will hear a case challenging the constitutionality of DOMA. Many have come forward over the last year in support of overturning the Act. Support has ranged from progressive LGBT rights advocates to President Barack Obama himself. Most recently Bill Clinton, the man who signed DOMA into law in the first place, has come forward.

When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination.” Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.

So, what if it is overturned? How would such a decision impact same-sex married couples’ tax position and how long will it take for those changes to take place? Frankly, I expect the implementation be slow and burdensome. The IRS made a small change for a small portion of same-sex coupled taxpayers three years ago and we still don’t have official rules.

Not only will it take time for Congress to amend laws and regulations, it will take the IRS time to amend tax forms and procedural guidelines.  Furthermore, if spouse is no longer defined to only include opposite sex partners but applies to all couples who have a valid marriage, how will “valid marriage” be defined and how will the IRS know who has one? The easy answer would be any couple married in a legal marriage state. Only it’s not that simple, is it?  Many couples hold marriage licenses from legal marriage states but live in states without same-sex marriage. The issue is further convoluted when considering the varying recognition laws in each state.

I can only hope that the fall of DOMA will lead to blanket legal marriage across all states. Until then, I truly don’t understand how the IRS will determine which couples have the right to file jointly and I fear that they are no better prepared for such a change than they were for community property income splitting. I suppose the upside of this is that the delay in implementation will provide same-sex married couple taxpayers ample time for tax planning.

Just as it is with community property income splitting, the change will benefit some taxpayers and harm others.  For those of you that will not see a tax benefit from joint filing it may behoove you to start planning now. For those that will benefit, the question of amended returns arises. If DOMA is ruled unconstitutional it means it was always unconstitutional. To me, this suggests the right to amend prior year returns with married filing jointly status in order to cash in on the refunds you should have already received.

Only time will tell how this will all unfold, but my fingers are crossed.  I am grateful to witness and be part of such inspiring and historic accomplishments in equal rights.

LGBT Equality Cliff (Not) Averted: Highlights of 2012 LGBT Rights Accomplishments

08 Tuesday Jan 2013

Posted by in Law Suits, Legislation, Marriage, Washington

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Congress may have averted the fiscal cliff but I doubt they can curb the fall of anti-LGBT legislation. In 2012 we saw monumental achievements in equality. The momentum is still growing and I do not expect it to slow in 2013. Instead, we may see a Supreme Court rule DOMA unconstitutional. Such a decision would have countless and far-reaching positive consequences; I call this potential roll out of rights the LGBT Equality Cliff.

The progress in 2012 was seen across the board, not just legislatively. Television shows had unprecedented growth in LGBT characters, actors and athletes came out as LGBT and allies, and musicians and Fortune 500 companies came out in support of marriage equality. There are positive shifts everywhere. The way that Americans think about the LGBT community is changing. Here are some of the many, many, achievements of 2012.

State Marriage

  • Maine, Maryland and Washington legalize gay-marriage
  • Rhode Island begins recognizing marriages from other states
  • Minnesota rejects a constitutional amendment denying marriage equality
  • New Hampshire blocks repeal of same-sex marriage
  • 9th Circuit Court of Appeals rules California’s Prop 8 is unconstitutional

DOMA

  • Federal District Court for the Southern District of New York rules DOMA unconstitutional
  • 1st Circuit Court of Appeals rules DOMA unconstitutional
  • Supreme Court agrees to hear two cases challenging constitutionality of DOMA

Elected Officials

  • Tammy Baldwin is elected as first openly lesbian or gay US Senator
  • Kyrsten Sinema is elected to House of Representatives and becomes the first openly bisexual member of Congress
  • Number of state legislatures with no openly LGBT members drops from 17 to 10
  • Michael Fitzgerald becomes 4th openly gay federal judge, the 1st outside of New York
  • Mark Takano becomes first openly gay person of color in US Congress

Military

  • Tammy Smith becomes first openly gay active duty general in American history
  • Sgt. Erwynn Umali and his partner Will Behrens become the first gay couple to marry on a military base
  • Pentagon hosts first-ever LGBT Pride event

Transgender Rights

  • US Citizenship and Immigration Services announces that US will recognize valid marriages for immigration purposes regardless of a spouse’s subsequent gender transition
  • U.S. Equal Employment Opportunity Commission rules unanimously that employment bias based on transgender status is tantamount to discrimination based on sex, which violates the Civil Rights Act of 1964
  • Massachusetts passes transgender anti-discrimination bill
  • American Psychiatric Association removes “gender identity disorder” from the DSM-5[i]

Media

  • Nordstrom’s, JC Penny, Microsoft, Amazon, General Mills, Macy’s, Starbucks, Viacom, Boeing, and Google announce support for marriage equality
  • NAACP announces support for marriage equality
  • President Obama and Vice President Biden announce support for marriage equality; so do Jay Z, Brad Pitt, Jason Mraz, Morgan Freeman, and Bruce Springstein
  • Anderson Cooper, Wade Davis, Orlando Cruz, Frank Ocean, and Sally Ride come out
  • San Francisco 49ers become the first NFL team to join the “It Gets Better” campaign
  • Keelin Godsey becomes the first openly transgender Olympic contender

Other

  • First PTA specifically for LGBT students is created in Long Island NY
  • Department of Justice publishes final regulations creating national standards directly addressing LGBT needs in an attempt to eliminate sexual abuse in America’s prisons, jails and local detention facilitates

As great as this list is, there are still 2012 achievements not listed.  I can only imagine what 2013 will bring. We’ve already had one victory this year when the American Civil Liberties Union secured severance pay for those discharged from the military under Don’t Ask Don’t Tell.  

What to Watch For in 2013

  • January vote on gay marriage bill expected in Illinois
  • February vote on gay marriage bill expected in Rhode Island
  • Supreme Court will review two DOMA cases in March

Happy New Year everyone!

[i] Gender Dysphoria remains in the DSM.

Will the Supreme Court kill DOMA in 2013?

07 Tuesday Aug 2012

Posted by in Law Suits, Legislation, Marriage

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Court cases challenging DOMA are popping up across the nation with increasing frequency.  Over the last two years, the legislative momentum has grown dramatically. We are now at a point where we can expect at least one of these cases to be heard by the Supreme Court.  The implications of the Supreme Court hearing such a case are enormous. We could be within a year of undefining, as opposed to redefining, marriage.  If we are successful in broadening the federal definition of spouse to include partners of the same sex, many currently unavailable federal benefits will become accessible to our partners.

There are two key cases currently making their way through the courts.

Perry v. Brown (California) 

This is the infamous Prop 8 case formerly known as Perry v Schwarzenegger.  In February of 2012 a three judge panel, in a monumental decision, held that prop 8, which amended the state constitution to disallow same-sex couples from becoming married, was unconstitutional.  The judges found that there was no “rational basis” to restrict same-sex couples from the right to marry.  Judge Reinhardt, who authored the opinion, declared that Prop 8 violated the Equal Protection Clause stating:

“Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry… the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of a disfavored class.”

Golinski v Office of Personnel Management (California)

This case stems from a from a 19-year old woman’s complaint after her application to include her wife under her employer-provided health coverage was denied. While this case may not be as well-known as the Prop 8 case, it is widely considered to be the one with most potential for success.  In July, the Department of Justice filed a writ of certiorari, basically a request that the Supreme Court hear the case. Many expect the Supreme Court will accept despite the fact that these requests are rarely granted.  This is especially noteworthy since the request asks that the Supreme Court hear the case before it makes its way through the remaining lower court appeals.  This unusual writ also includes a request to combine the case with two others challenging DOMA’s constitutionality.

Between the two cases, there is widespread conjecture that Golinski not only has a better chance of being heard by the Supreme Court but also has a better chance of being upheld.  At a conference I recently attended[i], Oregon attorney Cynthia L Barrett speculated that a win in the Brown case could require that the court issue a blanket decision allowing same-sex marriage in all 50 states. The Golinski case may instead only require a decision allowing federal benefits on a state by state basis. The expectation is that the benefits would only be available to those holding a valid sate marriage certificate in one of the six states[ii] that allow gay marriage.

Considering the pace with which states are attempting to pass same-sex marriage legislation, perhaps a Supreme Court decision of this magnitude will serve to further that drive.  In the current environment, where it is no longer possible to stand against same-sex marriage without significant backlash, as evidenced by the recent Chik-Fil-A controversy, we can, finally, imagine an attainable and expedient move towards federal marriage equality.

[i] Barrett, C.L. Ask. Tell. LGBT Estate Planning Developments, Multnomah Athletic Center, Portland, Oregon; OHSU Foundation: June 2012

[ii] Gay marriage is also legal in Washington DC and is pending in the State of Washington.