Comments On Us Supreme Court Decisions On Doma And Prop 8

Last week’s SCOTUS decisions in United States v. Windsor, 570 U.S. (2013), the court found part of the Defense of Marriage Act (DOMA) was unconstitutional and in Hollingsworth v. Perry, 570 U.S. (2013), that the court lacked jurisdiction to enter the fray over the constitutionality of California’s Proposition 8 were historic. I attempt to touch upon a few aspects of these decisions as they affect Family Law issues, particularly in California.

In striking down part of DOMA, in essence, the Federal Government must now afford the same recognition to same-sex marriages that it has provided to opposite sex marriages. In a same-sex divorce, concepts of alimony will now parallel the opposite sex couples and we will know, absent agreement to the contrary, alimony payments will be deductable by the payor and included in the recipient’s taxable income. Also, the division of retirement benefits under the Employee Retirement Income Security Act (ERISA) will now be possible as a same-sex spouse will be recognized as a person who can be designated an alternate payee for the provision of retirement plan benefits as ordered by a Qualified Domestic Relations Order (QDRO). Also, for IRA’s, transfers without triggering taxation for withdrawal will be possible. Finally, applicable to spouses who have been married for 10 years or more, is the potential for derivate benefits under the Social Security Act.

In finding a lack of jurisdiction to hear the challenge to California’s Proposition 8, the court found those defending the Proposition were not a real party in interest and lacked standing to undertake the challenge. That cleared the way for the decision from the 9th Circuit Court of Appeals to stand. That decision affirmed the trial court ruling that California’s Proposition 8 was unconstitutional. The trial team seeking to invalidate Proposition 8 were old foes in the Bush v Gore case, Ted Olson and David Boies. They came together and set up a masterful case and strategy to show why Proposition 8 was unconstitutional. In response to the SCOTUS decision, the 9th Circuit vacated a stay they had placed in effect while the case was on further appeal. Almost immediately, city clerks were issuing licenses and marriages were taking place including shortly after the stay was lifted the female couple up north were wed by California’s Attorney General Kamila Harris and the male plaintiffs were wed in Los Angeles by then Los Angeles Mayor Antonio Villaraigosa.

We are not exactly sure where things will go from here legally as we are expecting more challenges to the court’s action. With as well as the case was tried and the shift in public opinion I, personally, am doubtful that California will ever join those states who have forbidden same sex marriage.

Finally on divorce, California has always recognized the validity of a marriage that was valid in the jurisdiction where the ceremony was performed. Meaning that a same-sex couple from New Hampshire could relocate to California and seek a divorce. There are some states, however, that do not recognize same-sex marriages and will likely, for the time being, deny the right to divorce in their states. There is some discussion that the SCOTUS decision reasoning regarding DOMA will be used in those states to clear the way for their citizens to petition the courts just as the opposite sex couples can.