This morning, the Supreme Court struck down DOMA, the Defense Of Marriage Act, which declared that marriage was exclusively reserved for one man and one woman. Unfortunately, it doesn’t mean we can all run out and get married in every state just yet.
Like most Supreme Court rulings, this one was pretty complicated. To get some specifics, we talked to Steve Eisman, a well-known matrimonial lawyer at the New York firm Abrams, Fensterman.
THE DATE REPORT: So, can I go book my same-sex wedding for Alabama right now? What about Utah? Kentucky?
STEVE EISMAN: Nope. What the ruling does is say is “[Marriage] is the state’s domain.” It comes from a case brought by a New York resident, where same-sex marriage is recognized. When her spouse died, she didn’t get the benefit of the federal tax rights she would have had if their marriage was recognized. The first thing the court did was say that the treasury department has to give her a check. Right now, this ruling only affects states where same-sex marriage is legal.
[Editor’s note: That woman is named Edith Windsor, and you can learn more about her and her awesomeness here.]
TDR: So, besides taxes, what else will this affect for gay couples? What other rights will come into play now?
SE: Social Security, ability to file joint taxes, federal insurance and retirement plans, bankruptcy protection, COBRA [health insurance]… about a thousand different federal statutes for married couples that now apply equally. What DOMA did was trample all over states’ rights to give these to legally married same-sex couples.
TDR: What does this mean for same-sex couples with immigration issues? If one spouse is from the US and the other one isn’t, will the other spouse be able to get a green card?
SE: They will be treated the same as any other married couple.
TDR: What happens now if gay couples want to get divorced?
SE: It will depend on the jurisdiction. The decision says that marriage and divorce are in the provenance of the state to determine. I did have a case where a couple from Texas came to New York to have a prenup executed and then get married there. Basically, the prenup says their divorce will be governed by the state of New York and not by Texas, even though they live there.
TDR: Right now, this ruling doesn’t make gay marriage legal in states where it isn’t currently legal. Do you think the DOMA ruling will inspire other states to make same-sex marriage illegal, or do you think they’ll double down and amend their state constitutions to outlaw it?
SE: People feel very strongly about the issue one way or the other. Even though the decision about [California’s] Proposition 8 rested on a technical issue, I think that proponents of same-sex marriage will feel very empowered by the decision today. I think that it will continue throughout the country and more states will recognize same-sex marriage soon.
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