Where do the candidates stand on DOMA?

The Defense of Marriage Act (DOMA) has been held unconstitutional by both the 1st and 2nd U.S. Circuit Courts of Appeals.  While we wait to see whether the Supreme Court will review these cases, you may have heard that there is an election coming up.  Whether or not the Supreme Court overturns DOMA, congress has the authority to repeal the Act if they so chose.  Since the major party presidential debates ignored this issue, you may not be fully aware of the party platforms on this issue.

Each of the following parties has a presidential candidate running for president in 2012, and below we have excerpted their platforms' references to DOMA, same-sex marriage, and discrimination based on sexual orientation (click the links to read the entire platform):


2012 Republican Party Platform excerpts:

"Defending Marriage Against An Activist Judiciary
A serious threat to our country’s constitutional order, perhaps even more dangerous than presidential malfeasance, is an activist judiciary, in which some judges usurp the powers reserved to other branches of government. A blatant example has been the court-ordered redefinition of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society, challenging the institution which, for thousands of years in virtually every civilization, has been entrusted with the rearing of children and the transmission of cultural values.

A Sacred Contract: Defense of Marriage

That is why Congressional Republicans took the lead in enacting the Defense of Marriage Act, affirming the right of States and the federal government not to recognize same-sex relationships licensed in other jurisdictions. The current Administration’s open defiance of this constitutional principle—in its handling of immigration cases, in federal personnel benefits, in allowing a same-sex marriage at a military base, and in refusing to defend DOMA in the courts— makes a mockery of the President’s inaugural oath.  We commend the United States House of Representatives and State Attorneys General who have defended these laws when they have been attacked in the courts. We reaffirm our support for a Constitutional amendment defining marriage as the union of one man and one woman. We applaud the citizens of the majority of States which have enshrined in their constitutions the traditional concept of marriage, and we support the campaigns underway in several other States to do so."

2012 Democratic Party Platform excerpts:

"Freedom to Marry. We support the right of all families to have equal respect, responsibilities, and protections under the law. We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

We oppose discriminatory federal and state constitutional amendments and other attempts to deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples. We support the full repeal of the so-called Defense of Marriage Act and the passage of the Respect for Marriage Act.

Gay Rights as Human Rights. Recognizing that gay rights are human rights, the President and his administration have vowed to actively combat efforts by other nations that criminalize homosexual conduct or ignore abuse. Under the Obama administration, American diplomats must raise the issue wherever harassment or abuse arises, and they are required to record it in the State Department's annual report on human rights. And the State Department is funding a program that finances gay rights organizations to combat discrimination, violence, and other abuses. "

2012 Green Party Platform excerpt:

"5. Sexual Orientation and Gender Identity

In keeping with the Green Key Values of diversity, social justice and feminism, we support full legal and political equality for all persons, regardless of sex, gender, sexual orientation, or gender identity, characteristics, and expression.

a. The Green Party affirms the rights of all individuals to freely choose intimate partners, regardless of their sex, gender, gender identity, or sexual orientation.

b. The Green Party recognizes the equal rights of persons who identify as gay, lesbian, bisexual, intersex, transsexual, queer, or transgender to housing, jobs, civil marriage, medical benefits, child custody, and in all areas of life including equal tax treatment.

c. The Green Party will be inclusive of language in local, state and federal anti-discrimination law that ensures the rights of intersex individuals and prohibits discrimination based on gender identity, characteristics, and expression as well as on sex, gender, or sexual orientation. We are opposed to intersex genital mutilation.

d. The Green Party affirms the right of all persons to self-determination with regard to gender identity and sex. We therefore support the right of intersex and transgender individuals to be free from coercion and involuntary assignment of gender or sex. We affirm the right of access to medical and surgical treatment for assignment or reassignment of gender or sex, based on informed consent.

e. We will pursue legislation against all forms of hate crimes, including those directed against people who identify as lesbian, gay, bisexual, queer, transgender, and intersex. Offenders must pay compensation to the LGBTIQ people who have suffered violence and injustice.

f. The Green Party will end all Federal military and civilian aid to national governments whose laws result in the imprisonment or otherwise bring harm to citizens and residents based on sexual orientation, or gender identity, characteristics, and expression.

g. The Green Party will enact a policy that the U.S. Government recognize all international marriages and legal equivalents, such as civil unions, in processing visitor and immigration Visas.

h. The Green Party would repeal don't ask don't tell, abolish security clearances denied on the basis of sexual orientation and/or gender identity, and supports the rights of defense personnel and volunteers to serve their country openly without penalty irrespective of sex, sexual orientation, and gender identity.

i. The Green Party would end security surveillance and covert infiltration of organizations that promote equal rights on the basis of sexual orientation and gender identity."

2012 Libertarian Party Platform excerpt:

"1.3 Personal Relationships

Sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.


3.5 Rights and Discrimination

Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that "right." We condemn bigotry as irrational and repugnant.  Government should neither deny nor abridge any individual's human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Parents, or other guardians, have the right to raise their children according to their own standards and beliefs.  This statement shall not be construed to condone child abuse or neglect."

2012 Justice Party Platform excerpt:

"• End discrimination based on race, gender and sexual orientation
 • Support marriage equality"

2012 Constitution Party Platform excerpt:

"Family

No civil government may legitimately authorize or define marriage or family relations, as affirmed by the 10th amendment, delegating to the people as our founders understood the family as necessary to the general welfare.

We affirm the importance of Biblical scripture in the founders’ intent as eloquently stated by Noah Webster: “The moral principles and precepts contained in the Scriptures ought to form the basis of all our civil constitution and laws… All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war proceed from their despising or neglecting the precepts in the Bible.”

The law of our Creator defines marriage as the union between one man and one woman. The marriage covenant is the foundation of the family, and the family is fundamental in the maintenance of a stable, healthy and prosperous social order. No government may legitimately authorize or define marriage or family relations contrary to what God has instituted. We are opposed to any judicial ruling or amending the U.S. Constitution or any state constitution re-defining marriage with any definition other than the Biblical standard.

We call for an end to all taxation and economic formulas that discourage marriage, incentivize co-habitation and child bearing outside of marriage or authorize or provide government funding for policies and programs that further erode the jurisdiction of the family or parental rights.

We reject the notion that homosexuals, transgenders or those who are sexually deviant are deserving of legal favor or special protection, and affirm the rights of states and localities to proscribe offensive sexual behavior. We oppose all efforts to impose a new sexual legal order through any courts or legislatures. We stand against so-called "sexual orientation" and "hate crime" statutes that attempt to legitimize inappropriate sexual behavior or stifle public opposition to its expression. We oppose government funding of "partner" benefits for unmarried individuals. Finally, we oppose any legal recognition of homosexual or civil unions.

We recognize that parents have the fundamental right and responsibility to nurture, educate, and discipline their children. We oppose the assumption of any of these responsibilities by any governmental agency without the express delegation of the parents or legal due process. We affirm the value of the father and the mother in the home, and we oppose efforts to legalize adoption of children by homosexual singles or couples."

Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky

Same Sex Marriage Map from Wikipedia
this version by StephenMacmanus

Since 2004, same-sex couples have been allowed to marry in Massachusetts. A handful of states have followed suit and begun allowing gay marriage (namely, Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia). Some couples have traveled to these states to obtain a same-sex marriage, even though their home state does not permit or recognize their marriage. Further, some same-sex couples that have married in states permitting their marriage have since moved to states that do not recognize their union.



What happens if these couples want to later dissolve their marriage?

A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states.  However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages.

The rationale behind not allowing same-sex divorce is that those states will not dissolve a legal relationship that they refuse to recognize as valid. For a same-sex married couple that married in Massachusetts but later moved to a state that, like Texas, which won't permit their divorce, obtaining a divorce may prove to be far more complicated than for their opposite-sex counterparts.

Massachusetts requires that parties to a divorce case must have lived together in Massachusetts, and one of the parties must still live in the state when the cause for divorce occurred. Alternatively, if the cause of divorce occurred in Massachusetts, or if one of the parties has lived in Massachusetts for one year, the state will be able to hear their divorce case. If a same-sex couple married in Massachusetts and later moved to Texas, they can't get divorced in Texas or Massachusetts unless they can meet these requirements in Massachusetts, which usually means moving to Massachusetts for at least some period of time.

On the other hand, an opposite-sex couple that married in Massachusetts but later moved to Texas would simply have to meet the jurisdictional requirements of Texas if one of them decided to file for divorce there.

This is just one of the ways that the Federal Law DOMA and the discriminatory enforcement of laws in some states relating to same-sex marriages continues to cause unequal treatment of these same-sex couples.

Should you have any questions about divorce, same-sex or otherwise, contact Attorney Justin L. Kelsey, or call 508.655.5980 to schedule a free one hour initial consultation.

Divorce and Taxes: Issue #6. Same Sex Marriages

Unfortunately, the current state of the law creates two classes of married citizens. Traditional opposite sex marriages are one class and same sex marriages are treated as second class by the limitations created by DOMA (the poorly named "Defense of Marriage Act"). DOMA prohibits the federal government from recognizing same-sex marriages. Although the current federal administration has indicated they will not defend DOMA in Court, it is still currently the law of the land. That means that many of the tax issues described in our last few blog posts do not apply in the same way to same-sex marriages.

Issue #6. SAME SEX MARRIAGES: Below we have described the numerous ways that DOMA changes how same-sex marriages are treated when it comes to taxes:

MARTIAL STATUS: For Federal tax returns, same sex married couples cannot file under married status. Therefore, their tax status upon divorce does not change on their federal returns.

ALIMONY: Because same-sex former spouses cannot be considered spouses for federal tax returns, they cannot take a tax benefit associated with a former spouse. Therefore, alimony payments made to a same-sex former spouse do not qualify as tax deductible income to the payor and cannot be categorized as alimony payments for federal tax purposes.

PROPERTY TRANSFERS: Because same-sex spouses and former spouses cannot be considered spouses for federal tax purposes, the exemption on capital gain realizations for transfers between spouses does not apply. Similarly, the transfers of retirement accounts allowed by QDRO between former spouses is not permitted between same-sex spouses. The inability to transfer retirement assets without tax implications can severely inhibit the ability to divide marital assets sensibly.

These limitations imposed by DOMA create extra considerations that must be made in dealing with same-sex divorce cases.

Click here to read Divorce and Taxes: Issue #1. Marital Status.

The Fight for Gay Marriage and Gay Divorce

As described in a recent article on CNN Living (Serious legal hurdles for gay divorce), just because gay and lesbians can get married doesn't mean they can get divorced.

Gay and Lesbian couples who marry in one of the few states that allow gay marriage may not be able to get divorced if they move to another state. Currently only Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and the District of Columbia issue marriage licenses to same-sex couples.

As the CNN article describes, the Texas Attorney General is appealing a ruling by a Texas Judge allowing a lesbian couple (who had been married in Massachusetts) to get a divorce in Texas. An attorney who represents a gay couple awaiting the Texas decision noted "Ironically, if the attorney general [of Texas] is so against gay marriage, why is he trying to hard to keep these two men together?"

Regardless of the ruling in that case, getting divorced in other states isn't the only hurtle facing gay and lesbian couples who want a divorce. DOMA, the Defense of Marriage Act, denies same-sex spouses access to many federal benefits. In a same-sex divorce case, even in Massachusetts, the couple will not be able to accomplish certain typical divorce resolutions in the same way as an opposite sex couple.

For example, a typical division of an asset in a divorce is to transfer a portion of one party's retirement asset to the other. This can be accomplished without tax consequences via a Qualified Domestic Relations Order, but since the IRS does not recognize same-sex marriage, this same transfer would have significant tax consequences in a same-sex divorce. Another example is the tax treatment of alimony. The payment of alimony by the payor to the recipient is taxable to the recipient and tax deductible to the payor. This allows for a shifting of the tax burden, and also usually for a lower tax burden overall because some of the income is shifted to a lower tax bracket. Again because the IRS does not recognize same-sex marriages, same-sex couples who have an alimony order will not receive this tax benefit.

For a further description of how DOMA affects same-sex marriages and the current cases challenging it ( ) check out this article written by our Law Clerk, Jonathan R. Eaton: Defense of Marriage Act: Ability of the Federal Government to Deny Access to Benefits to Spouses in Same-Sex Marriages.

Mass Attorney General asking Federal Judge to declare DOMA unconstitutional.

According to a Boston Globe article, Massachusetts Attorney General Martha Coakley filed a request with the U.S. District Court last Thursday, February 19, 2010, to rule on the constitutionality of the Federal Defense of Marriage Act (DOMA). The reasoning behind the A.G.'s request is that DOMA forces Massachusetts to discriminate against same-sex spouses in order to maintain certain federal funding for programs like Medicaid and Veteran's burials.

These are only two examples of how DOMA affects same-sex spouses. Despite Massachusetts law granting same-sex couples the right to marry, there are Federal benefits that traditional spouses enjoy which same-sex couples do not because of DOMA. Many of these differences are related to tax benefits for spouses. For example, spouses can transfer property between each other without certain tax consequences where non-spouses cannot.

This can be a particularly difficult issue in same-sex divorces as it relates to retirement accounts. Because retirement accounts are defined by Massachusetts law as martial property, divorces often result in a non-taxable transfer of retirement funds between ex-spouses. When the division is completed by a Qualified Domestic Relations Order (QDRO) the transfer does not result in any tax consequences. But transfers between non-spouses of retirement funds are treated like a liquidation resulting in income tax and a tax penalty (if the plan participant is below retirement age). Since same-sex spouses are not spouses for federal purposes retirement account funds cannot be transferred without tax consequences.

Although you are unlikely to hear a lot of discussion relating to same-sex divorce in support of the same-sex marriage debate, the discrimination against same-sex spouses becomes even more evident when these spouses request the protection of divorce laws.

Even if you believe that states should have a right to decide the same-sex marriage issue state-by-state, it's hard to support discrimination by the Federal government of same-sex couples in the states that have already decided in favor of same-sex marriage. DOMA effectively throws the weight of the Federal government against same-sex marriage rather than remaining neutral on the issue. Good luck to the Mass A.G. in restoring at least some balance.