Rebecca Green Thomason – Attorney at Law
Recently the Supreme Court mandated federal recognition of gay couples who were married in states that permitted the marriage. The Supreme Court also reopened the door to same-sex marriage in California. The practical and legal consequences of these decisions are enormous.
The U.S. Supreme Court’s ruling in United States v. Windsor that overturned Section 3 of the Defense of Marriage Act (DOMA) means that gay and lesbian couples who are legally married can now take advantage of many tax breaks, pension rights, and other benefits previously available only to married heterosexual couples.
Among these benefits are: open enrollment periods for health plans, continuation of benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), eligibility for leave under the Family Medical Leave Act, taxation of spousal health benefits, eligibility for spousal retirement benefits, and surviving spousal social security benefits.
It was a tax issue that triggered the lawsuit. When Thea Spyer died, plaintiff Edith Windsor had to pay a steep federal estate tax on what her partner, Spyer, left to her. This tax was not imposed on couples of a heterosexual marriage.
She sued, challenging the constitutionality of DOMA. Windsor won at the district court and at the U.S. Court of Appeals for the Second Circuit. While the case was pending, the Obama administration announced it would no longer enforce that part of DOMA. Still, the administration did not give her the tax refund she asked for.
This decision may mean that there is a possibility of retroactive benefit claims under pension plans. It means that widowed same-sex spouses who previously were not able to claim spousal benefits can now request these death benefits.
The Supreme Court decision leaves intact Section 2 of the law, a provision that says states aren’t required to recognize gay marriages performed in any other state. Some states recognize gay marriages performed in other states, but others do not. Currently Alabama does not allow same sex marriage nor does it recognize this type of marriage that has been performed in other states. According to the 2010 U.S. Census, there were 11,259 same-sex couples in Alabama.
Patricia Todd, Alabama’s first openly gay Legislator, has announced that she and her partner intend to sue to require Alabama to recognize same sex marriage.
This would give homosexual couples the same legal standing as heterosexual couples. This would also give married gay couples living here the same federal benefits available in other states.
States that ban gay marriage also ban gay divorce. Divorcing couples living in states that don’t recognize gay marriages can’t return to the state of their marriage to get a divorce because of residency requirements. In Alabama there is no same sex marriage or same sex divorce.
The next battle will be in federal courts over the full faith and credit clause of the constitution. When this issue is decided in the federal courts, Alabama may be required to recognize the marriages of same sex couples.