Local attorneys say DOMA dismissal leaves states, businesses in limbo


Ric Roane.

The U.S. Supreme Court struck down the Defense of Marriage Act this week and dismissed the Prop. 8 case on jurisdictional grounds, returning California to a gay marriage state.

The decisions were seen as huge wins for the gay marriage movement and expectations are that challenges to states with constitutional bans against gay marriage, such as Michigan, will follow.


The DOMA case, United States v. Windsor,revolved around the issue of estate taxes and more than 1,100 federal benefits granted to married heterosexual couples but not to legally married gay couples. Following the death of her wife, Thea Spyer, Edith Windsor was hit with a bill for $363,053 in estate taxes, a bill she would not have received if the federal government recognized her marriage to Spyer.

In the court’s decision it stated, “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

“The Defense of Marriage Act is unconstitutional,” said Warner Norcross partner Richard Roane. “It discriminates against a class of Americans without any rational basis for doing so, which means that the decision repeals the Defense of Marriage Act.

“The Defense of Marriage Act was full of discriminatory provisions that treated same-sex married couples different than heterosexual married couples with respect to federal taxation, Social Security benefits, immigration benefits, military benefits, virtually any benefit that is available to a heterosexual married couple was denied to married homosexual couples.

“This has a wide sweeping impact on gays and lesbians throughout the entire country because they now have access to federal benefits, regardless of whether they live in a gay marriage state or not.”

Prop. 8

Californians were granted the right to marry before a 2008 ballot initiative took away that right. In Hollingsworth v. Perry, the Supreme Court said that the challengers did not have standing to fight the case and directed the Ninth Circuit Court to dismiss the appeal for lack of jurisdiction.

“The whole issue of the Prop. 8 case was whether or not the proponents of Prop. 8 had the standing to take it up to the Supreme Court,” said Miller Johnson attorney Connie Thacker. “From a judicial perspective, I think the decision was correct; they didn’t have standing. Now we have another state that is going to allow gay marriage.”

The decision, however, avoided a sweeping ruling on the constitutionality of gay marriage, and leaves in place state bans on gay marriage.

“I think that in some ways we’ve created this mayhem that is going to go on in our society until we move to the point where we accept and acknowledge these same-sex marriages, because we are going to have different states doing and applying different processes as it relates to these same-sex couples,” Thacker said.

What’s Next?

The decisions leave intact Michigan and other states’ constitutional amendments defining marriage as being between one man and one woman, which both Thacker and Roane say will continue to wreak havoc on states regarding legal issues.

“We still have the issues hanging out there of what do we do from a matrimonial perspective?” Thacker said. “If these couples are married in certain states, how do they get divorced? Where do they go to get divorced?”

Because Michigan does not recognize gay marriages, couples legally married in other states are often left in limbo when it comes to trying to obtain a divorce because of residency requirements for divorce in the state where they married, and Michigan judges’ inability to recognize their marriage and, therefore, grant them a divorce.

“It didn’t help us with custody, parenting time or child support, or any of those laws, because those are still state laws,” Thacker said.

Additionally, Roane pointed out how the decision might impact the state’s businesses.

“If you have a gay couple who is working and producing in Michigan, whether they are teaching at a university, running a small, medium or large business, or whether they are an executive at a very large fortune 500 company, Michigan has this regressive, repressive anti-gay marriage ban that prohibits equal treatment of gays and lesbians,” Roane said. “Why would these people stay and do business? Why would they stay here? Why wouldn’t they up and go be a CEO in a company that is more respectful of whom they are and gives them benefits? Or run their business in a more gay-friendly state?

“It’s a human rights case as well — it’s the right thing to do — and often what is the right thing to do with respect to diversity and inclusion is good for business. If we have diversity- and inclusion-regressive policies in our state, then it’s the wrong thing to do and it’s bad for business. The states that are going to thrive, I believe, from a business climate standpoint, are going to be the ones that are more welcoming and inclusive, the 13 states that don’t have these discriminatory laws, as defined by the U.S. Supreme Court.”

It’s not all bad news for businesses, however. Companies that do offer benefits to same-sex married couples currently will likely see an improvement when it comes to their HR processes for employees in same-sex marriages.

“Probably it will lessen the impact on companies on what they have to do and make it easier for them,” Thacker said. “As the health care relates to the federal level, it’s going to be easier for all of us now. We don’t have to worry about this taxation of the benefits, if that’s applicable or whether or not you really qualify for the benefits and how that all works, because the couple is going to be married in a state that allows it and there is no longer, as they referred to in the opinion, a second tier marriage.”

Legal Challenges Coming

Legal challenges will continue around gay marriage issues for states with constitutional bans, but the Supreme Court’s DOMA decision may prove helpful in repealing state bans.

“Justice (Anthony) Kennedy, who authored the majority opinion, writes, ‘The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,’” quoted Stephanie Myott, attorney at Rhoades McKee. “Future parties could use this to argue that there is no legitimate purpose for states such as Michigan to limit marriage to a man-woman union.

“Public opinion favors marriage equality, and I anticipate that today’s rulings will lead to statewide pushes for equality. Michigan representatives are introducing legislation to legalize marriage equality, and there is an ongoing grassroots effort to get an initiative on the 2016 ballot. People need to continue fighting in Michigan for marriage equality because today’s decisions mark a turning point in the struggle.

“Until then, same-sex couples need to be proactive in their planning, including developing estate plans to protect themselves and their families, because currently Michigan isn’t doing much to help.”

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