Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT

Gay Rights After SCOTUS: The Future of Civil Unions and Domestic Partnerships


DP2The upcoming Supreme Court decisions on DOMA and Prop 8 will not be the last word on marriage, in particular, or gay rights, in general. As we look forward to those words, however, let's take a look ahead and discuss how the legal landscape may be more complicated after the end of June. "Gay Rights After SCOTUS" is Towleroad's series on LGBT legal issues after Perry and Windsor. In today's column, the fate of civil unions and domestic partnerships in a post-DOMA world.

Many Court watchers think that the Defense of Marriage Act (DOMA) will be overturned in Windsor v. United States. We discussed the legal questions at issue in that case here, here, here, and, in general, here. When DOMA is tossed out, the federal government will be free to recognize the same-sex couples married in those states that recognize the freedom to marry. Those couples will be able to file joint tax returns and enjoy other tax benefits (and obligations) associated with marriage. American citizens in same-sex marriages with foreign nationals will be able to sponsor their spouses for visas. And federal employees in same-sex marriages will be able to extend their health care benefits to their spouses.

But what will happen to the hundreds of thousands of gay couples who are in registered civil unions or domestic partnerships? Precious few are talking about it this year, so let's begin the discussion.

In 8 states, civil unions are identical to marriage just without the word "marriage". In several other states, civil unions offer most of the state benefits of marriage and in most cases, civil unions or domestic partnerships are the only options open to gay couples wishing to affirm their unions in the eyes of the state. It is, however, not clear that an end to DOMA will mean that the federal government will start recognizing civil unions as marriages for federal purposes.

AFTER THE JUMP, I discuss the possible options and the way forward.

The issue of federal recognition of civil unions is really two questions in one: Will the federal government consider civil unions as marriages for the purposes of federal law? Who gets to decide?

As to the first question, there are three options: yes, no, and sort of.

Yes. Civil unions are the only recognition options for gay couples in 8 states, including California (stay tuned, though!) and New Jersey, which are home to particularly large gay populations. Their civil unions are identical to marriage and provide all the state benefits of marriage. Therefore, the federal government has little reason to distinguish between official marriages and other official unions that are identical in all aspects but name only.

The problem remains that the federal government has never really recognized any civil unions -- gay or straight -- as married. It never had to, primarily because heterosexuals always had the marriage option.

No. Civil unions are not marriages and DOMA Section 3 refers only to marriage: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The problem with this argument is exactly what hyper-textualists would like: dismissing civil unions are not marriages is just way to formal, too simplistic, and incomplete.

Sort of. DOMA's wording is keyed to the thousands of clauses in federal law that refer to couples. Notably, only slightly more than half of those clauses use the word "marriage," or a derivative thereof. In many cases, the IRS, INS, and other agencies refer to "spouse." Two individuals in a civil union can still be considered "spouses" even if they are not officially married under state law.

The problem with this argument is that, if adopted, it will lead to even more confusion. And yet, it seems to be the conclusion that makes the most sense the way the current laws are written. To our great regret, there are federal statutes that include a marriage trigger; those triggers are just part of the reasons why marriage rights are so important. If words in statutes are to be given any meaning, we can easily distinguish between marriage triggers and "spousal" triggers, allowing the federal government to recognize civil unions for some parts of federal law. But this kind of haphazard application of federal law is a bad idea: it will cause inefficiencies, fraud, mistakes, and injustice.

The other option is to rewrite federal law.

This leads us to the second question: Who gets to decide what the federal government will do? Again, there are three options: the executive, Congress, a little bit of both.

WhitehouseExecutive. We learn in elementary school that Congress makes the laws and the President executes the laws, but that quaint truism misses the complexity of the administrative regulatory state, where Congress may write a law, but all the real interpretations of it and the specific instructions on implementation come down from the administrative agency or agencies tasked with turning Congress's will into reality. By way of example, think about how now-Senator Elizabeth Warren's Consumer Financial Protection Bureau wrote all the detailed regulations of the Dodd-Frank financial law. So, if the President and the executive branch decide how administrative agencies are going to interpret the laws and regulations under which they operate, it may be up to the President to decide how the INS will interpret spousal visa rules or how the IRS will interpret joint tax filing or joint bankruptcies or how the Social Security Administration will interpret its survivorship rules (the rules that give social security benefits to surviving spouses of the deceased).

This argument makes a lot of sense. But any administrative interpretation of federal law could be challenged in the courts and rejected as an improper executive overreach contrary to Congressional intent. There are a host of court precedents about how to adjudicate agency interpretations of federal law and, therefore, we may be looking at several years of litigation about administrative rule-making.

CapitolCongress. Congress has a role to play, as well. Not only can Congress pass a law that requires administrative agencies to interpret statutes in a certain way, Congress can rewrite the federal laws that administrative agencies are interpreting. House Republicans could band together with a future Senate to pass an omnibus rewrite that puts the word "married," or a derivative thereof, in every relevant federal law.

A little bit of both. It seems clear that the fate of the federal recognition of civil unions will rest in the combined hands of the executive, Congress, and the courts. At a minimum, then, there will be a lot more work in a post-DOMA world.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. Law interpretation is a very subjective matter. It is not discrete and indisputable as 2 + 2 = 4. One justice can say this law is fair, another say that same law is not fair. The decisions they make base on how they were raised, their educations, their views, the people around them and in their lives. Scholars can write all articles predicting how the constitution should be interpreted but in the end it only matters what the 9 “Justices“ has to say.

    So in summary to Ari Erza Waldman article of what happens when DOMA goes down, the answer is nobody knows except for the 9 people on the tops who make decisions for everyone.

    Posted by: Teehee | Jun 18, 2013 12:02:27 PM

  2. If the Civil Union states were not recognized by federal statute as the same as marriage, there would certainly be further litigation on the matter. In fact, there is likely to be anyway because the people in states that have neither marriage nor civil unions would demand equality in federal recognition.

    Posted by: Buff Carmichael | Jun 18, 2013 12:13:55 PM

  3. One thing to keep in mind here by way of precedent is that the IRS has recognized domestic partnerships as being the equivalent of marriages for tax purposes in those states with both domestic partnerships and community property laws. The only three states affected have been California, Oregon and Washington (until last December when Washington's marriage equality law went into effect; now...who knows?). It is possible that, for federal purposes, civil unions and domestic partnerships could be construed the same way as common-law marriages have historically been viewed. Common law marriages were once relatively widespread but most states have done away with them. I suspect this has to do with the expansion of state and federal benefits allocated on the basis of marital status. Since a common law marriage does not have any legal documentation to support it, it's very difficult to validate one which creates a burden not only for the couple affected but also for the state and the federal government.

    Posted by: sfbob | Jun 18, 2013 12:20:38 PM

  4. The Supreme Court can use their judicial authority and put all-this-to-bed once and for all!

    Take the "Interracial Marriages" route and as Justice Kennedy reiterated, go to the "Happy Place"!

    Posted by: BRAINS | Jun 18, 2013 1:02:18 PM

  5. Count on it, all the "they don't need to be married, civil unions already give them all the same rights and benefits" people will reverse course so fast it leaves a sonic boom if the federal government tries to grant spousal benefits to anything other than a marriage.

    Posted by: Lymis | Jun 18, 2013 1:37:29 PM

  6. INS? That hasn't existed since 2003. I think in this case you mean USCIS, but there's also ICE and CBP.

    Posted by: Randy | Jun 18, 2013 2:57:27 PM

  7. I think the way to get there is the "place of celebration". States that find same sex marriage abhorrent can continue to refuse to license such marriages and not recognize them for state purposes. OTOH, the Federal government can recognize the power of each state to create valid marriages just as it recognizes the power of each state to create valid corporations.

    "making sense" may not be a legal principle, but to decide otherwise means that couples would be able to annul their marriages by moving to another state.

    Some Federal laws and regulations are written this way, others depend on state of residence, and some are just ambiguous.


    If the Supreme Court doesn't settle this, can the Executive? or is back to Congress?

    Posted by: Rich | Jun 18, 2013 3:00:00 PM

  8. If SCOTUS only strikes Section 3 of DOMA as unconstitutional, but allows Swction 2 to stand, the remains of DOMA could create a situation where, for federal purposes, only those same-sex couples who were legally married are eligible for federal recognition... but only if that couple also reside in a state in which marriage equality is recognized.

    I had an idea for an act of "civil disobediance" that could bring the IRS to a crashing halt next tax year.

    1) Those of us, like myself, who are legally married, yet live in a state-DOMA "protected" jurisdiction do NOT file our 2013 taxes electronically. We get and complete the paper form(s), and

    2) We do not mail those forms to the IRS until the last filing day; and

    3) We file as "Married, filing jointly."

    If SCOTUS allows DOMA Section 2 to stand, the IRS would have to verify each and every return from a same-sex couple meets eligibility requirements. I'd think having to do that, at the height of tax seaon, coud cripple them for awhile.

    Posted by: Eric Payne | Jun 18, 2013 3:08:39 PM

  9. Eric, that sounds in principle like a terrific idea and acts of civil disobedience are generally speaking praiseworthy. However, if you do such a think, be sure that everything you show in your returns is documented to the "t" since you'd probably be creating a situation where both of you would be subject to an audit. You don't want to find yourself fined for filing a fraudulent return.

    I think that, in reality, your returns would--rather than crippling the reviewers at the IRS they would simply set your returns aside for scrutiny at a later date.

    What I've tried to say in a probably too-wordy way is that you don't want to screw yourselves over in order to make a point, even if the point is well worth making.

    Posted by: sfbob | Jun 18, 2013 3:45:09 PM

  10. Absolutely, sfbob, I'm not advocating tax cheating (and you don't knoe my sqeaky-clean hubby. If he's going to deduct $1, he's going to have a reciept).

    Posted by: Eric Payne | Jun 18, 2013 3:58:34 PM

  11. Eric - I love acts of civil disobedience, but wouldn't the IRS know what state and zipcode the returns are from and be able to categorize valid & invalid SSMs via a simple computer programming update?

    Posted by: Rexford | Jun 18, 2013 4:21:44 PM

  12. How on earth can the SCOTUS punt on this decision when it will create and immediate avalanche of litigation all across the country, private, corporate and within the government? There are already cases in the shoot on their way. Why cowtow to this nonsense of "not going too fast" when it's obvious which way this will ultimately end up and the massive problems a half assed ruling will create?

    Posted by: Michaelandfred | Jun 18, 2013 6:06:16 PM

  13. @Rexford -- I don't know if they could or not, but someonr would still have to cross-reference names, SSNs and validity of filing status -- they'd also have to reconfigure the submitted forms, notify the taxpayer of adjustment of taxable income, then wait for the Court filings challenging their findings, based on a violation of the FF&C clause. All at the same time tens of thousands of taxpayers are waiting for a check. I admit the logistics of pulling it off would be tough, but I also think it's simple and elegant.

    Posted by: Eric Payne | Jun 18, 2013 6:09:26 PM

  14. Writing strictly as a layperson, if I am not mistaken, several states have automatically converted civil unions to civil marriages, without the need for action on the part of the happy couples.

    Posted by: EdA | Jun 18, 2013 9:14:38 PM

  15. Here in Oregon couples file four returns: two Federal returns as Single; a and a State return as Married filing jointly along with an "as-if" Federal return showing what our taxes would have been if we'd filed as Married. That enables us to know exactly what DOMA is costing us: over $20,000 in additional Federal tax since 2009 when Oregon enacted an "everything but marriage" DP law. This year we filed for a prospective refund in case DOMA falls, and we learned something surprising: it wasn't optional. We were required by law to file a correction if we learned that there was an error in our filing in a previous year. Since Oregon requires us to file as Married (that's not optional either) we may be required to file as Married with the IRS whether they like it or not; and the burden would be on the Feds to justify why they were treating our marital status differently than Oregon. This is headed back to court after DOMA, and if Obama doesn't direct the IRS to recognize us he'll have some explainung to do.

    Posted by: BZ | Jun 19, 2013 9:11:47 AM

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