As always, before reading my post, please review my disclaimer by following the link above or by clicking on this link. As always, legal policies discussed here pertain only to the Commonwealth of Virginia.
Introduction
Unless you've been living under a rock today, you know that the Supreme Court issued its rulings in United States v. Windsor and Hollingsworth v. Perry. The former found the federal Defense of Marriage Act ("DOMA") unconstitutional, and the latter found that the petitioners lacked standing to fight to support Proposition 8, preventing the Court from reaching the merits of that case. Most people seem to recognize that the Prop 8 ruling basically has no meaning outside of California, but what about the DOMA ruling? If you are a homosexual living in Virginia, what does the ruling in Windsor mean to you?
No Nationwide Same-Sex Marriage... Yet
The first thing to realize is that Windsor did not, in any way, find that there is a constitutional right to same-sex marriage. That issue was not even technically before the Supreme Court in this case (it theoretically could have been in Perry, but as discussed above, no "merits" decision was issued in that case). As a result, if you are in a same-sex relationship living in Virginia, don't rush off to your local courthouse to get married - Virginia's ban on same-sex marriage remains on the books. While the Supreme Court might some day rule that there is a constitutional right to same-sex marriage - and some have suggested that the language of Windsor implies there are five votes to go that way if the issue is squarely presented to the court - it did not do that today.
The Feds Must Recognize Your Legal Same-Sex Marriage
Now, let's say you go off to Vermont, where same-sex marriage is legal, and marry your same-sex partner, even though you are both residents of Virginia. Well, unless Vermont has a law that I'm unaware of about residency requirements, you will then be legally married under Vermont law, regardless of Virginia law. Today's ruling in Windsor means the federal government must recognize that marriage. This means you can now file joint tax returns, get the benefit of the marriage exclusion from estate taxes (the actual issue that brought Windsor to the Supreme Court), sponsor your non-American same-sex spouse for immigration, and you can get access to the myriad other rights that the federal government confers on married couples. However, in all of this, I want to emphasize the word "federal."
(UPDATE: Please read the comments to this blog post for a brief discussion of this issue. While I stand by my belief expressed above, the fact is even this "victory" for same-sex couples is not guaranteed and is debatable, and we will not be certain of this until the new regulations are released.)
Virginia Is Not Required to Recognize Your Legal Same-Sex Marriage
Even though the Federal government must now recognize same-sex marriages that are legally performed in states that allow them, states do not necessarily have to follow suit. This is because DOMA actually had multiple sections. The issue before the Court in Windsor was Section 3. That's the Section of DOMA that forbade the federal government from recognizing same-sex marriages, even if they were legal and legally performed in the state where entered into. Section 2 of DOMA, which was not before the Supreme Court and was not struck down today, allows states to disregard same-sex marriages legally entered into in other states if those states so choose. Virginia has so chosen, and Section 2 remains on the books.
Of course, Section 2 will be thrown out if same-sex marriage is found to be a constitutional right. Similarly Section 2 could be in danger due to the Full Faith and Credit Clause of the Constitution, but again, it is currently the law of the land. As a result, using the example from above, just because you can file a joint federal tax return doesn't mean you can file a joint state one, or get any of the myriad benefits Virginia confers on married couples.
Divorce
Because Family Law is one of my primary practice areas, I, of course, cannot stay away from the topic of divorce. Let's use our above example again. You go to Vermont, you get married to your same-sex partner, you return to Virginia, you stop working since your same-sex partner makes more than enough to pay for you both, you buy a house together, you adopt a child who you stay home to raise, you do all the normal things married couples do, then suddenly you find out your spouse is cheating on you. You confront your spouse and your spouse kicks you and your child out of the house since the house is in only your spouse's name. You come back to the house, your spouse calls the police, you read my first post on my blog about how your spouse can't just kick you out of the house, so you tell the police you're married, the police officer laughs in your face because Virginia doesn't recognize your marriage and forcibly removes you, and you're stuck living in a hotel. You want to file for divorce, you want spousal support, you want custody, you want child support, and you want your share of the house - all of which you would definitely have a strong case for if you were in a heterosexual marriage. What can you do?
One option would be to return to Vermont to file for divorce there, but residency requirements, personal jurisdiction problems and other problems may very well make that impossible. Suddenly, you find yourself without luck. Can you file for divorce in Virginia, when Virginia does not recognize you as married to begin with?
There are two approaches you can take. First, you can file for an annulment. In Virginia, when a marriage is "void" (as in, was never legal in the first place), you can still file for an annulment to allow for a "clarification" of your marital status, and to decide some property rights. The odds are, however, your recovery in an annulment case would be limited, you almost definitely cannot get spousal support, and, possibly most frustrating of all, you would have to acknowledge that your marriage was not valid to begin with.
The second approach would be to file for divorce anyways. The court cannot ban you from filing a case to begin with, it can only dismiss the case after it's filed. This means, you could file for divorce, and then argue that Virginia's same-sex marriage ban is unconstitutional, there's a constitutional right to same-sex marriage, DOMA's Section 2 is unconstitutional, or some combination thereof. Just be ready that if you do this, you will have to face the full might of the Commonwealth of Virginia in court, and you're talking about a protracted battle - easily four or five years if the case ends up in the United States Supreme Court. However, every major Supreme Court ruling has a real person at the heart of it (Edith Windsor today, and in the past Richard and Mildred Loving, Oliver Brown, Fred Korematsu, Homer Plessy, William Marbury and so on), and it's not inconceivable you could find yourself on that list.
Conclusion
If you are in a same-sex relationship in Virginia, you have a lot to celebrate today, but you also still have a long way to go before your relationship is recognized in Virginia. If you marry in another state, the federal government must now recognize your marriage, but Virginia does not have the same obligation. If you are in a same-sex marriage and want to discuss what rights you now have and how to protect your rights in the future, or if you are contemplating a divorce, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. It's free for up to half an hour! Please be aware, however, if you do retain me or my firm for representation in a divorce or other court action based on your same-sex marriage, the expense might be higher than usual due to the protracted nature of a constitutional challenge.
I respectfully disagree with your third section -- your analysis of same sex couples who got legally married out of Virginia, move here, and now seek federal benefits. I don't think you're entirely incorrect -- at least I certainly hope not. I would expect that many more married federal employees in Northern Virginia, for example, will begin to see positive changes with respect to health care coverage, pensions, and other protections that flow through their employment. I will admit, though, that I do not know a lot about federal employee benefit law.
ReplyDeleteWhen it comes to income taxes, however, my experience has been that it is the state of domicile that dictates the tax classifications, not the state where the marriage registry is filed. In other words, when it comes to gay Virginians who take a trip to Vermont and come back married, the IRS determines their marriage based on their Virginia-ness, not their Vermont-ness. IRS Publication 501 states that "State law governs whether you are married or legally separated under a divorce or separate maintenance decree." Granted, it doesn't say /which/ state law, but it makes more sense, and creates a more coherent tax policy, for the Virginia's laws to determine. If a person's marital status for federal purposes were determined by the laws of a state other than where they currently lived and paid state income tax, the system would be open to income and deduction shifting in a way that could be exploited. (Prior to yesterday's repeal of DOMA, savvy same sex couples in marriage equality states were able to legally take massive deductions and reduce their overall tax liability significantly.) Since the IRS is filled with remarkably intelligent lawyers, I would expect future regulations to make clear that marriage is based on domicile, not register. Thus, a same sex Virginia couple that got married in Vermont would NOT be able to file a joint federal return.
Another area is Social Security benefits, which I've heard explicitly rely on the state of domicile for marriage determinations. I'm not an expert there, though, so I could be wrong about that.
Obviously, the relevant agencies will be releasing further guidance in the coming weeks and months, so we can expect to get more accurate information soon. Until we learn otherwise, however, I do not believe most federal programs will extend benefits to same sex spouses who are domiciled in a state that does not recognize gay marriage, like Virginia.
Mike,
ReplyDeleteThank you very much for your comment, and as you will see, I have added an update to my post to point out that this issue is not yet resolved. I disagree with you primarily because of the way IRS Publication 501 speaks about common law marriages. While most states do recognize common law marriages from other states, even if they don't conduct them themselves, the regulation expressed in Publication 501 would apply whether that were true or not. It seems to allow for the possibility that some states will not recognize such marriages.
For a further point, I would refer you to the CNN article found at http://www.cnn.com/2013/06/26/politics/scotus-same-sex-marriage-irpt/index.html?hpt=hp_c3. It appears people much smarter than me also disagree on this matter. Erwin Chemerinsky, a name those of us in the legal profession all know as a top constitutional scholar, agrees with my position. Neil Siegel, another renowned constitutional scholar, agrees with yours.
In short, the real answer to this won't come until the new regulations are released, and I will be very interested to see what they are.