Most everyone is aware that the United States Supreme Court heard two historic cases this week focused on same-sex marriage.  One involves California’s Proposition 8 banning same-sex marriages (which was then rendered unconstitutional by a California Court of Appeal), and the other involves that portion of the federal law known as The Defense of Marriage Act (DOMA) which states that the federal government does not recognize lawful same-sex marriages.  These cases represent a legal battle between the states’ rights to regulate marriage and the constitutional principle of equality for same-sex marriages.  There are some interesting procedural issues which could affect the court’s ability to render a decision on the Proposition 8 case, but the big legal picture centers on the battle between the states’ rights and the equal treatment of same-sex couples.

The Real Issues

There is a lot of discussion about the morality of same-sex or gay marriage; its hypothetical impact on the institution of heterosexual marriage; the purpose of marriage (i.e., procreation), the meaning of family, etc. However, these moral and religious issues are a red herring; they are not the legal issues upon which the Supreme Court should base its ruling on these cases.

Aside from legal, moral or religious advocacy, there are real financial and day-to-day burdens shouldered by same-sex couples when there is no state and/or federal government recognition of their ability to marry.  Here are examples of the unequal treatment same-sex couples must endure under the current laws which define them as legal strangers to each other:

1. Estate Taxes.  Edie Windsor, the plaintiff in the DOMA case now before the Supreme Court, brought suit after the death of her same-sex spouse, whom she married lawfully in Canada and lived with for 40 years in New York (where same-sex marriage is legal). The IRS assessed an estate tax in excess of $300,000 against Windsor as the surviving same-sex spouse because the couple was not lawfully married in the eyes of the federal government.  When the spouse in a heterosexual marriage dies, the estate of the deceased spouse transfers to the surviving spouse tax-free.  Same-sex couples are treated as strangers because the estate of the deceased is taxed.  Windsor, the plaintiff in the DOMA case, is seeking a refund from the federal government for the estate tax assessed against her because her marriage was not recognized and she did not receive the same estate tax treatment as would the surviving spouse in a heterosexual marriage where no tax is assessed upon death.
2. Spousal Support. When heterosexual people divorce and spousal support is ordered, the person paying the support is allowed to deduct those payments on his or her federal tax return.  The recipient spouse must then pay tax on the spousal support.  In the divorce of a same-sex couple, or in the dissolution of their lawful Registered Domestic Partnership (which is allowed in California), the payor of spousal support Is not allowed to deduct this payment on his or her federal tax return because the federal government does not recognize the same- sex relationship.
3. Division of Property.  When heterosexual people divorce, the division of property is a tax-free transaction under federal law.  However, because the federal government does not recognize same-sex marriages, the division of assets in a same-sex divorce is subject to federal tax.
4. Social Security.  Heterosexual people who are married benefit from a myriad of Social Security and other federal benefits.  Same-sex couples are denied all of these benefits because the federal government does not recognize the legal status of their relationship.
5. Hospitals.  When a spouse is incapable of making decisions about his or her medical care, the other spouse has the right (unless there are directives to the contrary) to be a decision-maker.  When a same-sex marriage is not recognized, this right is frequently denied to a spouse.
6. Income Tax Benefits.  A sampling of some of the tax benefits enjoyed by heterosexual married couples which are often denied to same-sex couples includes:  Head of Household status; Earned Income Tax Credit; Married and Filing Jointly tax status (this is always denied); Child Tax Credit; Joint Capital Gains tax exclusion (married couples enjoy a maximum $500,000 exclusion, individuals receive only a maximum $250,000).

The Current Decision

There is no doubt same-sex or gay marriages are treated differently than heterosexual marriages.  Justice Ruth Bader Ginsburg referred to this difference as treating marriages as either “full marriages” or “skim milk marriages.”  The legal questions presented now to the Supreme Court will likely not result in finality on this issue due to the complex nature of the legal arguments.  Hopefully over time the legal issues will evolve to the point where the Supreme Court is forced to make the determination of whether equal rights for same-sex couples should exist throughout the United States under the 14^th Amendment to the United States Constitution.  The cases now before the Supreme Court may not allow for this type of sweeping decision, but they will no doubt further define the legal landscape for future litigation on this very important and historic issue.