BREAKING NEWS -- DOMA ruled unconstitutional by NY Appeals Court

[malasadas.livejournal.com]

The Federal Appeals Court in NY has ruled that the 1996 Defense of Marriage Act violates equal protection of the law and is unconstitutional. This makes the second appeals level court in the nation to do so, joining the Boston court from last year.

My take: Good. Argue all you want about whether or not states can or cannot bar same sex couples from receiving marriage licenses in their states, but DOMA is a terrible law that discriminates at the federal level against couples who are legally married in the states that DO have same sex marriage and which allows states that recognize heterosexual marriage licenses as valid across state lines to not recognize those marriages when they are from same sex couples. That's completely against the full faith and credit clause of the Constitution -- an act of Congress should not be allowed to just let states pick and choose what "public acts, records, and judicial proceedings of every other state." they respect.

Comments

[mylaptopisevil.livejournal.com]

Because the legal protections aren't bullshit.

[enders-shadow.livejournal.com]

they are bollocks though.

gimme two good reasons that the state should have any role whatsoever in marriage.

[oslo.livejournal.com]

We need look no further than Windsor for a good example: the spousal exemption from the estate tax. Is there any good policy reason to tax an estate when it passes from a deceased spouse to the surviving spouse? I had a law school friend who had to deal with gift taxes when she tried to buy a house with her partner, because her union wasn't recognized by the federal government. I mean, we really can think of plenty of transactions between spouses that would trigger tax liability absent some kind of marriage recognition. Does that count as more than two?

If not, we can think about all the instances in which the law has to ask: who is next of kin? Who's most closely related to a person? Who gets to make medical decisions for an incapacitated person? Who gets to inherit from an intestate decedent? Who gets to sue for loss of consortium? If the law recognizes a special relationship between parents and children, why shouldn't it recognize a special relationship between spouses?

Ultimately, state recognition of marriage isn't so much about exalting an outdated and intrinsically patriarchal institution (which it is) as it is about shaping policy and governance to match the way people actually go about living their lives. That's why refusing to recognize "same sex marriage" makes no sense. Every day, men and women are making the decision to intertwine their lives more closely with members of their own sex and/or gender, in economic, social, and familial relationships. By treating such individuals as living independently, the law and government simply fails to function.

I mean - I've been living with my partner for the past five or six years. For all intents and purposes, we might as well be common-law married (for all I know, under Illinois law, we might well be). There's no good reason for him to get taxed the way he does, and me to get taxed the way I do, when I am the sole income-earner in the household. There's no good reason for the [raft of other legal consequences that could result if the state were fully and directly aware of our living situation and sought to capitalize upon it] to fail to apply to us. And yet, here we are, six years and counting, and we're no more, legally speaking, than roommates. Does that make sense, from a policy perspective?

[mylaptopisevil.livejournal.com]

I had a law school friend who had to deal with gift taxes when she tried to buy a house with her partner, because her union wasn't recognized by the federal government.

Someone I know had to deal with something similar because, even though his workplace recognized his relationship as legitimate, at the time NYC didn't so it caused some tax-based wonkiness because his workplace did still offer health insurance for him and his partner.

[oslo.livejournal.com]

You mean, beyond the taxation of the DP-benefit as "income" to the employee?

[mylaptopisevil.livejournal.com]

It was forever ago, but I think that's what it was. I'm pretty sure it had to count as additional income because the marriage wasn't recognized.

[mylaptopisevil.livejournal.com]

I'm looking at it strictly as a legal contract that explains the rights of the two individuals in the relationship.

It's hard to enforce those rights if the government doesn't acknowledge them on a legal level.