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  Edition # 102  
San Francisco, 07-14-2013

Figure [1]: Protesters opposing proposition 8 in San Francisco, in front of City Hall. Photo: Frank Farm

Angelika In June, the Supreme Court, the highest and final legal instance in the United States, ruled on two important issues regarding gay marriage. A private citizen named Edith Windsor had filed a lawsuit against the so-called "Defense of Marriage Act" (short: DOMA). DOMA was signed into law in 1996 by then-president Bill Clinton, and said that individual states were no longer required to acknowledge legally granted same-sex marriages (e.g. by other states). DOMA determined a marriage to be valid only between a man and a woman and explicitly did not recognize same-sex marriages in the same way.

This put legally married same-sex partners at a disadvantage, because they were denied federal benefits like jointly-filed income tax reports, higher exemptions on inheritance tax, health insurance for family members, or surviving spouse social security. Also, U.S. immigration didn't recognize same-sex marriages, which means that same-sex spouses of legal immigrants weren't automatically granted a visa or Green Card.

Edith Windsor had married her partner Thea Spyer in 2007 in Canada. Both of them were living in New York state. When Thea died, she bequeathed all of her assets to Edith, but the U.S. Internal Revenue Service (IRS) didn't recognize their marriage, which was legally granted in Canada, and Edith faced $360,000 in inheritance taxes, because she couldn't claim the spouse exemption.

Figure [2]: The well-known insurance "Allstate" is running ads pro same-sex marriage in San Francisco.

The United States Supreme Court now ruled in her favor. The judges argued that DOMA violates the "due process clause" of the 5th amendment of the Constitution. The ruling is historical and groundbreaking. However, the Supreme Court emphasized that it's now up to the individual states to legalize same-sex marriages or pass legislation against them. This is bound to lead to considerable confusion, because individual government offices apply different rules when it comes to providing benefits at the federal level.

The immigration department, for instance, will grant visas or Greencards to spouses or family members, i.e. children, regardless whether the marriage license was issued in the U.S. or in a foreign country. From previous editions of this publication, you might remember that Michael obtained his Greencard through his employer, and I received one as well, simply because I'm married to him. This benefit now extends to all legal same-sex marriages.

However, the Internal Revenue Service (IRS) and the Social Security Administration are operating by different rules. Tax or social benefits are determined by the individuals' residence, which means that same-sex couples will only receive benefits in states where same-sex marriages are legal. You can easily see that there's a lot more work to be done and looming litigation until finally everyone enjoys equal rights.

The second case decided by the Supreme Court ruled over California Proposition 8 (Rundbrief 11/2008). The latter put same-sex marriages on hold in California in 2008, by defining marriage to be legal only between a man and a woman. In return, opponents immediately challenged Proposition 8 in the US District Court and judge Vaughn Walker ruled in their favor, arguing that Proposition 8 was discriminatory and hence violated the constitution of the State of California.

Alas, this did not render same-sex marriages legal in California, since government agencies and courts were waiting dutifully until the case had made its way through the higher courts. Then, the Ninth Circuit Court of Appeals in California agreed in February 2012 that Proposition 8 was violating constitutional rights, and the case went on to the highest federal court in the US, the Supreme Court. The judges there, however, dismissed the case because it wasn't the State of California filing the suit, but merely proponents of Proposition 8. The US Supreme Court decided that a lawsuit regarding the constitution of the State of California can only be filed by the State of California itself and not by a private party not officially representing the state. It thereby also voided the decision of the lower Ninth Circuit Court of Appeals, because it wasn't the State of California filing that lawsuit either. What remained was the first decision at the lowest court (Perry vs. Schwarzenegger), where the court had ruled Proposition unconstitutional, and that's the reason why since end of June there's been a flurry of legal same-sex marriages throughout California. The first one of course was held in San Francisco.

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