In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that federal law must defer to state law on the validity of same-sex marriages. After Windsor, when a valid marriage exists for purposes of state law, it exists for purposes of federal law.
Is federal law likewise required to recognize a civil union as a valid marriage? A split in authority seems to be developing. One view of the issue is taken by the leading IRS Revenue Ruling on same-sex marriage:
For Federal tax purposes, the term "marriage" does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state's law, and the terms "spouse," "husband and wife," "husband," and "wife" do not include individuals who have entered into such a formal relationship. This conclusion applies regardless of whether individuals who have entered into such relationships are of the opposite sex or the same sex.
Rev. Rul. 2013-17, § 4, 2013-38 I.R.B. 201. Thus, for tax purposes, the IRS will not recognize any state civil union as a valid marriage.
But a recent Ninth Circuit decision takes a conflicting view. In In re Fonberg, No. 13-002, 2013 WL 6153265 (9th Cir. Nov. 25, 2013), a female law clerk in the District of Oregon filed a petition to review an employment dispute. The plaintiff was a party to a same-sex civil union that was valid under Oregon law. She had attempted to enroll herself and her partner in a family health insurance plan offered to married employees of federal courts. The Office of Personnel Management ("OPM") denied her claim, reasoning that an Oregon civil union is not a marriage. OPM relied on a formal opinion letter somewhat similar to Revenue Ruling 2013-17:
The Supreme Court's decision addressed the constitutionality of a statute that defined "marriage" and "spouse" for purposes of federal law to include only opposite‑sex couples. Therefore, same‑sex couples who are in a civil union or other forms of domestic partnership other than marriage will remain ineligible for most Federal benefits programs.
OPM Ben. Admin. Ltr. No. 13-203 (July 17, 2013).
After mediation failed, the plaintiff filed a formal employment complaint alleging discrimination. The district court held that the federal government was required to recognize the plaintiff's civil union as a marriage but held that there was no authority for granting reimbursement for insurance payments made before the date of the order.
On appeal, the Ninth Circuit agreed that the federal government was required to recognize
the Oregon civil union as a marriage. Oregon's civil union statute provides:
Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual
because the individual is or was in a domestic partnership [civil union] or because the individual is or was, based on a domestic partnership, related in a specified way to another individual.
Or. Rev. Stat. § 106.340(1) (Westlaw current with 2013 Reg. & Sp. Sess. legis. eff. through 10/8/13) (emphasis added). Thus, Oregon state law expressly provides that partners to civil unions are entitled to all of the privileges and benefits of marriage. A civil union under Oregon law essentially is a marriage in all aspects except the name.
The Ninth Circuit held that the federal government is required to defer to Oregon law and
recognize an Oregon civil union as a marriage:
Fonberg and her partner are treated differently in two ways. First, they are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. This is plainly discrimination based on sexual orientation, which
the District of Oregon's EDR Plan prohibits. They are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor. This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employment based on the vagaries of state law. Here, Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor with respect to the Defense of Marriage Act. Both these forms of discrimination are prohibited under the Oregon EDR Plan.
Fonberg, 2013 WL 6153265, at *2. The Ninth Circuit also held that the plaintiff was entitled to reimbursement, reversing the district court's decision on that issue.
Fonberg does not directly hold that the position taken by OPM violates the federal Constitution. The narrow holding of the case is that the position taken by OPM violated a specific plan for federal employees (the Oregon EDR plan) that prohibited discrimination based upon sexual orientation. But given the court's express statement that "Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor," and given that Windsor construed the federal Constitution, there is a high degree of likelihood that the court would reach the same result in a case that directly presented the constitutional issue.
At a minimum, Fonberg suggests that the IRS's position on civil unions is likely to be contested by taxpayers who are partners to civil unions. The IRS seems to be reasoning that when a state describes a relationship as a civil union, it is expressly refusing to describe the relationship as a marriage and that, therefore, the federal government is not required to recognize the relationship as a marriage.
But many civil union statutes, including the Oregon statute at issue in Fonberg, are intended to give the partners literally all of the benefits of matrimony except for the label "marriage." Fonberg holds that when federal law looks to state law on same-sex relationships, it must look to the substance of that law—the rights actually granted to partners in civil unions—and not to the mere label.
It is possible, of course, that other courts will reach a different result and uphold the IRS's position. It is also possible that even the Ninth Circuit might distinguish Fonberg and reach a different result under the law of a state that does not define civil unions so broadly and does not award to partners in civil unions literally all of the benefits of marriage. But Fonberg certainly suggests that in some situations, Windsor may require the federal government to treat a civil union as a marriage.
A previous entry in this series of posts discussed Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) (see article below entitled "Is DOMA § 2 Next?"). Obergefell granted a preliminary injunction requiring Ohio to recognize a Maryland same-sex marriage, holding that Ohio constitutional and statutory provisions barring such recognition were likely unconstitutional. Ohio would recognize out-of-state marriages between persons of the opposite sex, the court held, and there was no rational basis for failing to likewise recognize out-of-state marriages between persons of the same sex.
But other courts have taken a different view of these provisions. A good example is the unpublished decision in Stankevich v. Milliron, No. 310710, 2013 WL 5663227 (Mich. Ct. App. Oct. 17, 2013). The plaintiff in Stankevich was a woman who married the child's mother in Canada. The couple then moved to Michigan. The couple jointly raised a child, who was born to the mother.
When the relationship broke down, the plaintiff sued for custody and visitation. The mother moved to dismiss, arguing that the plaintiff lacked standing. In custody cases in which a parent is a party, Michigan gives standing only to other biological parents. Mich. Comp. Laws Ann. § 722.25(1); Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992). A court-created doctrine of equitable adoption gives standing to spouses of parents, but it does not apply to partners who are not spouses. Van v. Zahorik, 460 Mich. 320, 597 N.W.2d 15 (1999).
The plaintiff argued that she was the spouse of the mother because the Canadian marriage
should be recognized. The trial court disagreed, and the appellate court affirmed:
Furthermore, plaintiff's suggestion that she is married for the purposes of the [Child Custody Act] is contrary to the law in Michigan. Earlier this year in United States v. Windsor, ___ U.S. ___; 133 S Ct 2675, 2689-2690; 186 L.Ed.2d 808 (2013), the United States Supreme Court reiterated, in the context of the Defense of Marriage Act (DOMA), that "[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States." The Court affirmed that "[t]he definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities." Id. at 2691 (quotation marks, citation, and brackets omitted).
Stankevich, 2013 WL 5663227, at *3. The court relied expressly on statutory and constitutional provisions barring recognition of same-sex marriages. "As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a
parent as defined under the [Child Custody Act] or the equitable parent doctrine, and therefore lacks standing to bring this action." Id. at *4.
The plaintiff in Stankevich did not make an express constitutional attack upon the statutes and constitutional provision at issue. Nevertheless, the tone of Stankevich suggests that such a claim would probably have been rejected. The provision quoted above relies heavily upon language in Windsor suggesting that states are free to recognize or not recognize same-sex
marriage. Those provisions informed the court's analysis, but they were secondary to the court's primary holding that DOMA was motivated by anti-gay prejudice.
Obergefell paid primary attention to the actual holding in Windsor, holding essentially that restrictions on recognition of same-sex marriage must be supported by some rational basis other than prejudice. Finding no such basis, the court suggested that Ohio's constitutional and statutory provisions against recognition of same-sex marriage were likely unconstitutional.
Stankevich, by contrast, emphasized earlier passages in the Windsor opinion noting that recognition of marriages has long been an area controlled by state law. If states have a broad right to recognize or not recognize same-sex marriages, then no special justification is needed for a state to choose the latter option. A state may choose to not recognize same-sex marriages, and the constitutional and statutory provisions cited by the court clearly show that Michigan has exercised that right.
The basic split between Obergefell and Stankevich is a logical and probably inevitable result of the way in which the majority opinion in Windsor was written. At points, that opinion stressed the long history of deferring to state law on the recognition of marriages, suggesting that states are free to choose to not recognize same-sex marriages. At other points, the court suggested that prohibitions on the recognition of same-sex marriages are often motivated by anti-gay prejudice and, therefore, to some degree inherently suspect. It will probably require additional litigation in the Supreme Court to resolve the conflict between these approaches.
October 18, 2013
Brett R. Turner, Senior Attorney, National Legal Research Group
ERISA and States That Recognize Same-Sex Marriages As Civil Unions
Following up on our previous discussion of Department of Labor Technical Release No. 2013‑04, the first reported decision to consider the issue has held that a same-sex spouse is entitled to benefits as a surviving spouse under a plan regulated by ERISA:
Post-Windsor, where a state recognizes a party as a "Surviving Spouse," the federal government must do the same with respect to ERISA benefits—at least pursuant to the express language of the ERISA-qualified Plan at issue here. There can be no doubt that Illinois, the couple's place of domicile, would consider Ms. Tobits Ms. Farley's "surviving Spouse"—indeed it already has made that specific finding under state law. Windsor makes clear that where a state has recognized a marriage as valid, the United States Constitution requires that the federal laws and regulations of this country acknowledge that marriage. In light of that, this Court finds that Ms. Tobits is Ms. Farley's "Spouse" pursuant to the terms of the Plan. This finding alone is dispositive of the issue of the proper recipient of Ms. Farley's death benefits.
Cozen O'Connor, P.C. v. Tobits, CIV.A. 11-0045, 2013 WL 3878688, at *4 (E.D. Pa. July 29, 2013) (footnote omitted).
The plan at issue defined a spouse as follows:
"Spouse" means the person to whom the Participant has been married throughout the
one-year period ending on the earlier of (1) the Participant's annuity starting date or (2) the date of the Participant's death. The Plan Administrator may rely on the Participant's written statement regarding such Participant's marital status.
Id. at *3. Nothing in this definition provides any support for defining "spouse" in a manner other than the normal definition of the term under Illinois law.
The couple at issue in Cozen O'Connor were married in Canada. They then moved to Illinois, and lived there until the decedent died in 2010. "A marriage between 2 individuals of the same sex is contrary to the public policy of this State." 750 Ill. Comp. Stat. 5/213.1. But Illinois recognizes out-of-state same-sex marriages as civil unions:
A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.
Id. 75/60. Applying this statute, an Illinois state court declared before the federal decision that the couple in Cozen O'Connor had a valid Illinois civil union, and that the surviving partner was the heir of the decedent.
Cozen O'Connor shows that the choice-of-law issues arising from Windsor, which are omplicated enough on their own, are even more complicated in states such as Illinois that recognize marriages as civil unions. The Canadian marriage in Cozen O'Connor was not recognized as a marriage in Illinois. But under section 75/60, it was recognized as a civil union. Cozen O'Connor holds that that is close enough to make the marriage valid for ERISA purposes—even though it was not valid as a marriage under Illinois state law.
The same result may not apply in other contexts. For example, the IRS has stated that it will not recognize a marriage between parties "who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state." Rev. Rul. 2013-17 holding 3. Partners in civil unions must therefore exercise care, and should seek advice of counsel, when determining whether to claim benefits in other states as married persons.
Another recent post-Windsor decision held that the federal government must recognize same-sex marriages in awarding benefits to military veterans. "The Court finds that the exclusion of
spouses in same-sex marriages from veterans' benefits is not rationally related to the goal of gender equality." Cooper-Harris v. United States, 2:12-00887-CBM AJWX, 2013 WL 4607436 (C.D. Cal. Aug. 29, 2013).
Cooper-Harris enjoined the government against applying 38 U.S.C. §§ 101(3) and 101(31), which define a marriage for purposes of veterans' benefits as a relationship between persons of the opposite sex. This is a logical extension of Windsor, as there is no basis for distinguishing between the general definition of marriage struck down in that case, 1 U.S.C. § 7, and the similar but more specific provisions at issue in Cooper-Harris.
September 26, 2013
Brett Turner, Senior Attorney, National Legal Research Group
The controlling federal statute on same-sex marriage is the Defense of Marriage Act ("DOMA"). DOMA has two operative provisions. Section 3, codified at 1 U.S.C. § 7, provides that no same-sex marriage can ever be treated as a valid marriage under federal law. This section was held unconstitutional in United States v. Windsor, 133 S. Ct. 2675 (2013).
DOMA § 2, codified at 28 U.S.C. § 1738C, provides that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex." In other words, no state shall ever be required to recognize a same-sex marriage from another state.
Case law before Windsor upheld the constitutionality of § 2. E.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005). In light of Windsor, however, that position is being revisited. The next big issue in federal constitutional law involving same-sex marriage may well be the constitutionality of § 2 of DOMA.
The first post-Windsor case to address the issue is Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). The plaintiffs in that case were two men who ived together in a committed relationship. One of the plaintiffs was terminally ill with amyotrophic lateral sclerosis, more commonly known as Lou Gehrig's disease. Both plaintiffs lived in Ohio, which does not recognize same-sex marriage.
On July 11, 2013, a specially equipped airplane flew the plaintiffs to Maryland, which allows same-sex marriage. While the airplane sat on the tarmac, the plaintiffs were married. They then immediately returned to Ohio. Neither plaintiff was ever domiciled in Maryland.
On the face of Ohio law, the Maryland marriage was not entitled to recognition in Ohio, which has both a statute and a constitutional provision barring recognition of same-sex marriage. Ohio Rev. Code Ann. § 3101.01(C)(2)-(3); Ohio Const. art. XV, § 11.
Upon their return to Ohio, the plaintiffs filed an action against the State of Ohio and various state officials, asking the court to order them to recognize the Maryland marriage.
The plaintiffs then sought a preliminary injunction.
The court granted the injunction, finding a substantial likelihood that the plaintiffs would prevail at trial. Ohio state law has traditionally held that the validity of a marriage depends upon the law of the jurisdiction in which it was created. The rule has been applied to underage marriage, Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519 (C.P. 1945), and to marriage between relatives (e.g., first cousins), Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The court also cited a passage in 45 Ohio Jur. 3d Family Law § 11, stating that the rule applies to common-law marriage.
The question then became whether Ohio could apply a different rule only to same-sex marriage. For two reasons, the court held not. First, the core reasoning of Windsor is that a rule violates equal protection if it was adopted out of prejudice against a minority group. Windsor held that DOMA § 3 was enacted out of prejudice against gay people, and that it was therefore
unconstitutional. The court saw no valid reason for the Ohio statute and constitutional provision at issue, other than similar prejudice against gay people.
Second, a rule violates equal protection if it does not have a rational basis. "Even if the
classification of same‑sex couples legally married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out‑of-state same sex marriages that is not related to the impermissible expression of disapproval of same‑sex married couples." Obergefell, 2013 WL 3814262, at *6.
Because the plaintiffs were likely to succeed on the merits, the court granted a preliminary injunction.
Obergefell did not expressly consider the constitutionality of DOMA § 2. But that provision is merely a federal version of the provisions that Obergefell held are likely unconstitutional. If equal protection requires that the courts apply to same-sex marriage the exact same choice-of-law rules applied to opposite-sex marriages, then DOMA § 2 is unconstitutional and out-of-state same-sex marriages must generally be recognized.
There is reasonable support in the majority opinion in Windsor for the result reached in Obergefell. Windsor stressed heavily a series of comments made by legislators enacting DOMA, suggesting prejudice against gay people. Those comments cannot be limited to only one
section of DOMA. If the prejudice shown by those statements is the controlling reason for invalidating DOMA § 3, it is likewise a strong reason for invalidating the rest of DOMA, including § 2.
But there is also reason to hold otherwise. At a practical level, Obergefell comes extremely close to forcing nationwide recognition of same-sex marriage. Any same-sex couple wishing to be married can travel to a state recognizing same-sex marriage, get married, return to their
home state, and have a marriage that their home state must recognize for all purposes as a matter of federal law.
It is highly significant that the facts of Obergefell show absolutely no Maryland domicile. The airplane landed, the marriage was conducted, and the airplane took off. If that is a permissible procedure, then federal law is essentially forcing state recognition of all same-sex marriages, because it is very easy to obtain an out-of-state same-sex marriage.
In addition, there are arguably valid reasons for imposing requirements upon recognition of out-of-state same-sex marriages that do not apply to other types of marriages. States have different rules on underage marriages and marriages among relatives, but none of these rules are matters of public policy. People are not marching in the streets, demanding that the state not recognize underage marriages or common-law marriages or marriages between close relatives. These are matters on which the states agree that reasonable people can differ.
But same-sex marriage is a fundamental public policy issue. The presence of statutory and
constitutional provisions in many states shows that recognition of same-sex marriage is viewed by many as a fundamental public policy issue. Obergefell held that one of the most serious and divisive disputes in modern American family law can be resolved by court action, because the judge believes that one side of the dispute is adopting an irrational position. That is certainly not an example of judicial restraint.
The argument against Obergefell is that the high level of public opposition to same-sex marriage, in those states that have not yet adopted it, is itself strong evidence the restrictions against recognition of out-of-state same-sex marriage—DOMA § 2 and its state equivalents—have a rational basis. They are not based upon prejudice alone, but upon a desire to maintain the traditional rule that marriage is for persons of the opposite sex only. Windsor spoke at length of how rules regarding marriage are traditionally a subject for state law and not federal law. Obergefell holds to the contrary, suggesting that federal law can dictate the content of state law rules on recognizing out-of-state marriages.
Finally, it is worth noting that Obergefell does not necessarily require recognition of all out-of-state same-sex marriages. A state could, in theory, adopt a rule that it would not ever recognize any out-of-state marriages that could not occur under local law. Such a measure would apply the same rule across the board to underage marriages, common-law marriages, and marriages between close relatives, thus avoiding one of the main reasons for the Obergefell decision. Such a provision might still be questioned, however, on the ground that it was motivated primarily by prejudice.
Overall, Obergefell is not a position that is likely to last in its current form over a long period of time. If the courts have the power to force recognition of same-sex marriage because the opposition is irrational and motivated by prejudice, then the wiser long-term move is simply to hold that same-sex marriage is a fundamental right—that is, to extend the principles of Loving
v. Virginia, 388 U.S. 1 (1967), to same-sex marriages.
If it is not yet time to declare that same-sex marriage is a fundamental right—and same-sex marriage remains a minority rule, although a growing one, among American states—then it is likewise arguably too early to declare that all opposition to recognition of same-sex marriage is irrational and a result of prejudice. In a world in which some states are free to recognize same-sex marriage and other states are free not to recognize same-sex marriage, there must be a better series of choice-of-law rules than simply assuming that all opposition to recognition is
irrational. Such an assumption fundamentally conflicts with the notion that states are free to refuse to recognize same-sex marriage in the first place.
September 23, 2013
Brett Turner, Senior Attorney, National Legal Research Group
The United States Department of Labor is charged with the administration of the
Employee Retirement Income Security Act ("ERISA"), the federal statute that regulates most private retirement plans. Almost all of these plans offer benefits not only to employees, but also to their spouses. The Department therefore faces the same post-Windsor issue as other federal agencies: In determining whether a person is an employee's spouse, which state's law controls?
The Department's answer is found in Department of Labor Technical Release No. 2013-04. That release provides:
In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department's regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term "spouse" will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.
Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.
Dep't of Labor (Sept. 18, 2013), http://www.dol.gov/ebsa/newsroom/tr13-04.html (emphasis added) (footnote omitted) (paragraph break added). Thus, the Department has adopted the same rule as the Internal Revenue Service ("IRS"): It will determine the validity of the marriage by the law of the state in which the marriage was celebrated.
The release explains the reasons for the rule:
This is the most natural reading of ["spouse" and "marriage"]; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term
"spouse"; and a narrower interpretation would not further the purposes of the relevant statutes and regulations.
A rule that recognizes marriages that are valid in the state in which they were elebrated, regardless of the married couple's state of domicile, provides a uniform rule of recognition that can be applied with certainty by stakeholders, including employers, plan administrators, participants, and beneficiaries.
A rule for employee benefit plans based on state of domicile would raise significant
challenges for employers that operate or have employees (or former employees) in more than one state or whose employees move to another state while entitled to benefits. . . .
Such a system would be burdensome for employers and would likely result in errors, confusion, and inconsistency for employers, individual employees, and the government. . . . The Department has coordinated with Treasury/IRS and HHS in developing this Technical Release, and agreed with those agencies that recognition of "spouses" and "marriages" based on the validity of the marriage in the state of celebration, rather than based on the married couple's state of domicile, promotes uniformity in administration of employee benefit plans and affords the most protection to same-sex couples.
Thus, the fundamental basis for the ruling is ease of administration. It would simply be too difficult for plan administrators to apply a definition of "spouse" or "marriage" that looks to the domicile of the parties.
Like the IRS, the Department of Labor stresses that a civil union is not a marriage:
The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals
who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.
Clearly, the strong trend in applying Windsor at the agency level is to look to the law of the state in which the marriage is celebrated, for fear that any other rule would be unduly difficult to apply.
October 2, 2013
Brett Turner, Senior Attorney, National Legal Research Group
The IRS has now issued guidance on how it will construe the Windsor opinion. The guidance is found in Revenue Ruling 2013-17.
The ruling begins by recognizing that Windsor applies broadly to all issues of federal tax law. "In light of the Windsor decision . . . the Service also concludes that the terms 'husband and wife,' 'husband,' and 'wife' should be interpreted to include same-sex spouses" for purposes of federal income tax law." Rev. Rul. 2013-17 at 4.
The ruling then relies heavily upon Rev. Rul. 58-66, cited previously in this article, which held that the IRS will recognize common-law marriages which were valid in the state in which
they were formed. The IRS will apply the same rule to same-sex marriages:
The Service has applied this rule with respect to common-law marriages for over 50 years, despite the refusal of some states to give full faith and credit to common-law marriages established in other states. Although states have different rules of marriage recognition, uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple's marital status could change simply by moving from one state to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply.
Id. at 3.
Consistent with the longstanding position expressed in Revenue Ruling 58-66, the Service has determined to interpret the Code as incorporating a general rule, for Federal tax purposes, that recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple's place of domicile. The Service may provide additional guidance on this subject and on the application of Windsor with respect to Federal tax administration.
Id. at 9.
Under this rule, individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages.
Id. at 10 (emphasis added).
Thus, even if the taxpayers are domiciled in a state which adamantly refuses to recognize same-sex marriages, they can spend a weekend in a state which does recognize such marriages, obtain a marriage license, and have a marriage which the IRS will recognize as valid
for federal tax purposes.
The IRS cautioned, however, that a civil union is not a marriage. "For Federal tax purposes, the term 'marriage' does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state's law." Id. at 13.
The new ruling expressly applies retroactively. "[A]ffected taxpayers also may rely on this revenue ruling for the purpose of filing original returns, amended returns, adjusted returns, or claims for credit or refund for any overpayment of tax resulting from these holdings, provided the applicable limitations period for filing such claim under section 6511 has not expired." Id. at 13. I.R.C. § 6511(a) provides:
Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3
years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.
I.R.C. § 6511(a) (emphasis added).
Three observations are worth making. First, the IRS cites no authority to support its claim that states generally refused to give full faith and credit to common law marriages from other
states. Such refusals were rare, and generally based upon failure to meet the elements of common law marriage, or in some cases upon a lack of sufficient time spent residing in the state which recognized common law marriage. The state law public policy objections against same sex marriage are many times stronger than the state law public policy objections to common law marriage have ever been. This is the weakest part of the IRS's reasoning.
Second, the real core of the IRS's reasoning is its concern that looking to any place other than the state of celebration will be administratively difficult. This is the strongest part of the IRS's reasoning. The cost of administering federal tax would be much greater under any other rule.
Third, the retroactivity provision is significant. Parties to same-sex marriages should consult with tax professionals as to whether filing amended returns for the past two to three years is advisable. There is good reason to suspect that many such returns will be filed. A significant side benefit of Windsor may be several years of full employment in the tax return preparation industry.
Brett R. Turner, Senior Attorney, National Legal Research Group
On June 26, 2013, the U.S. Supreme Court held in United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. June 26, 2013), that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional. Section 3 provides that for purposes of federal law, same-sex marriages are not recognized. Windsor held that in determining the marital status of same-sex couples, as in determining the marital status of opposite-sex couples, the federal government must defer to state law.
While state law is now controlling, many situations will arise in which state law is conflicting. This short note will take a preliminary look at choice-of-law issues in a post-Windsor world. The note is based upon a morning's worth of research, but not upon an exhaustive review of the entire field. As additional relevant points appear, the note will be kept updated.
At a very minimum, Windsor must mean that when a same-sex couple gets married and continues to live in a state that recognizes same-sex marriage, they have a valid marriage under federal law. Thus, they are entitled to federal benefits available to married persons, such as the right to file a joint tax return.
What if a same-sex couple gets married in a state that allows same-sex marriage but moves to a state that does not? Under federal tax law, "[f]or the purpose of establishing eligibility to file a joint Federal income tax return, the marital status of the two individuals is to be determined under the laws of the State of their residence." Von Tersch v. Comm'r, 47 T.C. 415, 419 (1967) (citing Rev. Rul. 58-66, 1958‑1 C.B. 60); Lipton v. Comm'r, T.C. Summ. Op. 2007‑36, 2007 WL 686349, at *4 (2007)
The practical setting of Revenue Ruling 58-66 was common-law marriage. Most American states have abolished common-law marriage, but a small number of states retain it. See generally Nadine E. Roddy, Interstate Recognition of Common Law Marriages, 9 Divorce Litig. 200 (1997). Revenue Ruling 58-66 stated:
The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws. Therefore, if applicable state law recognizes common‑law marriages, the status of individuals living in such relationship that the state would treat them as husband and wife is, for Federal income tax purposes, that of husband and wife.
The foregoing position of the Internal Revenue Service with respect to a common‑law marriage is equally applicable in the case of taxpayers who enter into a common‑law marriage in a state which recognizes such relationship and who later move into a state in which a ceremony is required to initiate the marital relationship. Accordingly, a taxpayer who enters into a common‑law marriage in a state which recognizes such marriages is entitled, under the provisions of section 151(b) of the Internal Revenue Code of 1954, to an exemption of $600 for his common‑law wife in making a separate income tax return, provided that, for the calendar year in which the taxable year of the taxpayer begins, she has no gross income and is not the dependent of another taxpayer. Also, for the purpose of filing a joint income tax return under section 6013(a) of the Code, a common‑law wife in a state which recognizes such marriages will be considered to be the taxpayer's spouse.
Rev. Rul. 58-66. Thus, if a couple contracts a valid common-law marriage in one state, the IRS will treat that couple as married in all other states, regardless of where they move.
But common-law marriage is a very imperfect analogy to same-sex marriage. States differ on whether they will allow common-law marriage, but states that do not allow such marriages by their own citizens still universally recognize common-law marriages when contracted out of state. Roddy, supra. By contrast, many states that do not recognize same-sex marriage feel so strongly about the issue that they will not recognize an out-of-state same-sex marriage.
But the common-law marriage cases probably do mean that federal recognition of same-sex marriages depends upon whether the state in which the parties reside would recognize a same-sex marriage, and not upon whether the state would allow its own citizens of the same sex to marry. For example, Maryland, New York, and Rhode Island recognized out-of-state same-sex marriages as valid some time before actually allowing such marriages. If a same-sex couple gets married in a state allowing same-sex marriage, and then moves to a state that recognizes such marriage, the marriage remains valid for purposes of federal law, even if the new state does not allow its own same-sex citizens to marry. That is exactly the same fact situation as in the common-law marriage cases.
Another potential analogy is antimiscegenation laws—laws prohibiting marriages between persons of different races. The IRS held in Revenue Ruling 68-277 that it would treat all mixed-race marriages as valid, regardless of state law. Rev. Rul. 68-277, 1968-1 C.B. 526. But that Ruling expressly cited Loving v. Virginia, 388 U.S. 1 (1967), which held that antimiscegenation laws were invalid on their face. Windsor clearly did not hold that laws banning same-sex marriage are invalid on their face. Rather, it held that whether to enact such a law is a question of state law, which the states are free to resolve in either direction. Research has not revealed any decisions considering the validity of a mixed-race marriage, for purposes of federal law, in the pre-Loving era, where the parties moved after the marriage.
The more common situation will occur when parties to a same-sex marriage move to a state that refuses to recognize out-of-state same-sex marriages at all. Under the logic of Revenue Ruling 58-66, and federal case law relying upon it, there would seem to be a good argument that if an out-of-state same-sex marriage will not be recognized in the state in which the parties currently reside, there is no valid marriage under federal law. Thus, a married same-sex couple may indeed lose federal benefits if they move to a state that refuses to recognize their specific marriage. But that is clearly a different question from whether the new state allows its own same-sex residents to marry.
It is possible, of course, that the federal government may come under some degree of pressure to change the principles of Revenue Ruling 58-66. Indeed, supporters of same-sex marriage are already pushing the federal government to adopt a broad rule that it will recognize any marriage that is valid in the state in which it was celebrated, regardless of where the parties live. Revenue Ruling 58-66 is purely administrative, and it could presumably be changed without the need for congressional action. Congress could, of course, reverse any administrative changes, but such a reversal would require a majority of both houses and approval of the President, a requirement that could be difficult to meet.
An even harder situation occurs when a same-sex couple, living in a state that does not recognize same-sex marriage, travels briefly to another state and obtains a same-sex marriage there, without having resided or been domiciled in the second state. This situation has arisen often in the context of divorce, and the general rule is that a divorce can be granted only in a state in which at least one spouse has a bona fide domicile. Williams v. North Carolina, 325 U.S. 226 (1945). Jurisdiction to marry seems similar to jurisdiction to divorce. It is very possible that federal law may not recognize a same-sex marriage that is not valid in the state in which the parties reside, even if the marriage was celebrated during a brief trip to a state that does recognize same-sex marriage.
There are probably a fair number of cases in which parties have crossed a state border to marry, without being domiciled in the new state, and their marriage has been upheld in the state in which they reside. But, again, there is a fundamental difference between marriages that a state does not allow, and marriages that the state refuses to recognize, especially for reasons of public policy. A state may prefer that its opposite-sex residents marry locally, but it rarely has a fundamental objection when they choose to get married elsewhere. The field of same-sex marriage, however, is full of restrictions based upon public policy. As long as the Supreme Court continues to view same-sex marriage as a concept that states are free to recognize or not recognize, it seems likely that federal law will not recognize an out-of-state same-sex marriage that is not valid in the state in which the parties reside, even if it is valid in the state in which it was celebrated.
The broadest possible choice-of-law rule would require the federal government to recognize any facially valid marriage license, regardless of where the spouses reside, so long as the marriage is valid in the state in which it was issued. This is clearly not the current law outside the same-sex marriage area, at least in the tax setting; the law on the books provides that the law of the state in which the taxpayer resides is controlling. Rev. Rul. 58‑66. But this rule arises primarily from common-law marriage cases, and a common-law marriage by definition has no formal license. There is room to argue that where a license does exist, the law of the state that issues the license is always controlling. But the greater likelihood is that the law of the taxpayer's residence will continue to be controlling.
So far, the discussion has assumed a single state of residence. But all married persons do not necessarily reside together. Assume that a same-sex couple marries in a state that permits same-sex marriage. They experience marital problems, and one spouse moves to a state that does not recognize same-sex marriage. Can the couple file a joint tax return? This is probably the most difficult situation. The most logical resolution is that the court should look to the last marital domicile—the last state in which the parties resided together. But there is room to argue that a joint tax return can be filed if either spouse resides in a state that recognizes the marriage, or to argue that the law of the state that issued the marriage license should be controlling.
The above discussion focuses primarily upon federal tax law, where the validity of a marriage has traditionally been determined by the law of the state in which the parties reside. The federal government provides married people with many benefits, and it is possible that different choice-of-law rules might apply outside the tax area.
Update (June 28, 2013): President Obama told reporters at a news conference, "It's my personal belief—but I'm speaking now as a president as opposed to as a lawyer—that if you've been married in Massachusetts and you move someplace else, you're still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple."
But conservative groups are arguing that federal law should look to the state of domicile. "'We would support a narrower interpretation that would only apply to the state of domicile,' said Peter Sprigg, senior fellow at the Family Research Council, which filed a friend-of-the-court brief in support of DOMA."
Update (June 28, 2013): Several people have asked why states are not required to recognize all out-of-state marriages, same-sex or otherwise, under the Full Faith and Credit Clause, U.S. Const. art. IV, § 1. That Clause provides:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
(Emphasis added.) Thus, while the general rule is that states must give full faith and credit to public acts of other states, including marriage, Congress is expressly given the power to modify this requirement by statute.
Pursuant to the power granted in the sentence emphasized above, Congress enacted § 2 of the Defense of Marriage Act (“DOMA”). That statute provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
So Congress has expressly created a statutory exception to the Full Faith and Credit Clause, applying to same-sex marriages.
Windsor held that § 3 of DOMA was unconstitutional, but the constitutionality of § 2 was outside the scope of the issues presented. The federal decisions to date have uniformly held that § 2 is a constitutional exercise of Congress's express power to define full faith and credit by statute. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005).
The Lawletter Vol 38 No 5
Sandra Thomas, Senior Attorney, National Legal Research Group
Yet another ground for conflict in U.S. state court custody disputes arises from the fact that a number of foreign countries have not signed the Hague Convention on the Civil Aspects of International Child Abduction. That treaty provides a civil remedy if a parent, in violation of the
custody rights of the other parent, absconds with a child to a foreign country. Under the Hague Convention, courts are required to return the child to the United States if he or she has been wrongfully removed from the United States or wrongfully retained in the foreign country. The courts of countries that have not signed the treaty are not bound by it and are not obligated to
return a child who was wrongfully removed or retained and not allowed to return to the United States. (Information about the status of particular countries is available at http://travel.state.gov/abduction/country/country_3781.html.)
This state of affairs has led some parents in U.S. custody disputes to ask for an order prohibiting the other parent from traveling outside the United States with the children or to ask that the children's passports be held by the domestic parent or by a third party.
A clear example of the challenges of evaluating these cases is found in Katare v. Katare, 283 P.3d 546 (Wash. 2012), cert. denied, 133 S. Ct. 889 (2013). In that case, the father had been born and raised in India and moved to Florida in 1989, where he met and married the mother. They moved to Washington state in 1999, when the father was hired by Microsoft. They had two children, one in May 2000 and the second in September 2001. In May 2002, the husband was offered work in India for two years. The wife strenuously objected to the move, fearing isolation for herself and harmful effects on the children's health. The mother claimed that the father then threatened to take the children to India without her, but he denied that.
At trial, the mother presented witnesses who had heard the father threaten to take the children to India, a parenting evaluator who found the mother's fears "justified," and an expert witness, an attorney with 17 years of experience with child abduction cases. Through testimony of the expert, the mother introduced literature citing "risk factors" for child abduction. At the end of the trial, the court found that the father posed a risk for abduction of the children, and it maintained the travel restrictions that had previously been imposed.
The Washington Supreme Court affirmed, holding that the trial court's findings had been supported by the evidence, that there was no error by the trial court in admitting the testimony of the expert witness, and that there were no constitutional violations by the trial court and no racial profiling involved in the consideration of the risk factors for child abduction presented by the expert witness. These factors included (1) whether the parent has threatened to abduct or has abducted previously; (2) whether the parent has engaged in planning activities that could facilitate removal of the child from the jurisdiction; (3) whether the parent has engaged in domestic violence or abuse; (4) whether the parent has refused to cooperate with the other parent or the court; (5) whether the parent has strong familial, financial, or cultural ties to another country that is not a party to, or compliant with, the Hague Convention; (6) whether the parent lacks strong ties to the United States; (7) whether the parent is paranoid delusional or sociopathic; (8) whether the parent believes abuse has occurred; and (9) whether the parent feels alienated from the legal system. Id. at 551 n.4 (¶ 17).
The Lawletter Vol 38 No 4
Brett Turner, Senior Attorney, National Legal Research Group
Data collected by the government have traditionally been presented to the public through official government publications. As the world moves deeper into the Age of the Internet, however, governments have increasingly stopped printing data reports. Instead, data reports are often published on an official government website. This fundamental change poses an evidentiary challenge for parties seeking to rely upon government-collected data.
A good example from the field of family law is the consumer price index ("CPI"), an index of price data produced monthly by the federal Bureau of Labor Statistics ("BLS"). It is not uncommon for a support provision in a divorce settlement to include a provision increasing the payments periodically, based upon changes in the CPI. Some states do not allow the court to insert such an escalator clause into its own order, but settlement agreements containing self-modifying support provisions are generally enforceable. See In re Marriage of Strieby, 255 P.3d 34 (Kan. Ct. App. 2011); West v. West, 891 So. 2d 203 (Miss. 2004); Payne v. Payne, 635 S.W.2d 18 (Mo. 1982).
When an escalator clause is based upon the CPI, how can the CPI be proven? This question was presented to the North Carolina Court of Appeals in the unpublished decision of Blackburn v. Bugg, 723 S.E.2d 585, 2012 WL 1332728 (N.C. Ct. App. 2012) (unpublished table disposition). The plaintiff in that case went to the website of the BLS, http://stats.bls.gov, and simply printed a list of the CPI for different years and months. The defendant objected that the printout had not been properly authenticated and was in any event inadmissible hearsay.
The trial court disagreed, and the appellate court affirmed:
[W]e discern no abuse of discretion in the trial court's admission of Plaintiff's CPI evidence. Plaintiff offered testimony, including the exhibits at issue, to prove the amount of CPI payments owed by Defendant at the time of trial. Defendant offered no evidence of his own CPI calculations, nor evidence to dispute Plaintiff's calculations. Plaintiff's exhibits consisted of computer printouts—which Plaintiff testified she obtained from a website operated by the United States Department of Labor—and her own handwritten calculations, which she computed using the CPI figures obtained from the government website. Plaintiff's testimony, in addition to the "UNITED STATES DEPARTMENT OF LABOR BUREAU OF LABOR STATISTICS" heading displayed on the printouts, was sufficient to prove that the computer printouts were what Plaintiff purported them to be. See N.C. Gen.Stat. § 8C-1, Rule 901 (2011). Moreover, we note that the CPI information set forth in the computer printouts is public information readily available and subject to judicial notice. See N.C. Gen.Stat. § 8C-1, Rule 201 (2011).
2012 WL 1332728, at *4.
To summarize, the computer printout was properly authenticated by the plaintiff's testimony that she had printed the document from an official government website. The official heading at the top of the document was also evidence that the document was what it claimed to be.
While the court did not mention the fact, another important point regarding a printout of a website is that the Web browser often automatically prints the Web address of the site at the bottom of the printout. This information allows any user to verify the printout simply by entering the same Web address into a browser, and it makes detection of fraudulent printouts a relatively easy process.
The court further held that the CPI is a fact of which the court can take judicial notice. This holding was based upon North Carolina Rule of Evidence 201, which provides:
(b) Kinds of facts.—A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
N.C. R. Evid. 201(b). Thus, the CPI is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"—the official BLS website.
Finally, while the court did not address the point, it is worth noting that the CPI surely falls within the scope of the hearsay exemption for "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law." Id. R. 803(8) (emphasis added). Observing and reporting price data is one of the core duties of the BLS.
As more government data is reported primarily on the Internet, evidentiary issues involving websites are likely to grow in frequency. A time may well come when the hearsay exception for public records is applied primarily or even exclusively to government websites.