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Bar News - March 22, 2013

The Demise of DOMA?


Charlie Morgan, a career soldier from New Durham, NH, succumbed to breast cancer on Feb. 10, 2013. Morgan leaves behind a same-sex spouse, Karen, who is not eligible for the survivor benefits afforded to an opposite-sex military spouse, or for Social Security benefits that would help her take care of their 5-year-old daughter, Casey. Charlie was (with Karen) a plaintiff in one of many lawsuits currently challenging the federal Defense of Marriage Act (DOMA).

DOMA defines marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite-sex who is a husband or a wife." Under Section 3 of DOMA, many of the rights and benefits of opposite-sex married couples are denied married same-sex couples.

The US General Accounting Office has identified 1,138 federal statutory provisions affecting benefits, rights, and privileges based on marital status or in which marital status is a factor. These include veteran’s benefits, Social Security survivor spousal benefits, and protections under the Family and Medical Leave Act and Employee Retirement and Income Security Act.

DOMA is under attack on many fronts and its future is uncertain. The Second Circuit recently found Section 3 unconstitutional. The US Supreme Court granted certiorari in Windsor v. United States, an action filed by Edith Windsor, who faced $360,000 in estate taxes when her wife died. The US Justice Department has announced that it will no longer defend DOMA, and the President has concluded that Section 3 is unconstitutional.

What may not be well known is that Section 2, which is not part of the Windsor challenge, allows states to refuse to recognize valid civil marriages of same-sex couples. Currently, only nine states and the District of Columbia (including the Northeastern states of Maine, New Hampshire, Massachusetts, Connecticut, New York and Vermont), have legalized same-sex marriage. Seven other states recognize civil unions or domestic partnerships. Thirty-one states have constitutional amendments banning same-sex marriage. State law rights and privileges benefiting opposite-sex married couples apply to private, state, and municipal workers, and affect adoption rights, property rights, state taxes, and control of a spouse’s remains, among other things.

Even if a same-sex couple is married in one of the states that legalized same-sex marriage, most states do not recognize such equal rights from other jurisdictions. For example, it does not appear a legally married New Hampshire same-sex couple can get divorced in Texas, a state which does not recognize same-sex marriage.

While some commentators predict the Court will uphold the ruling from the Second Circuit, it is unclear how narrow the decision will be and what impact it will have on married same-sex couples. Even if the Court strikes down Section 3 of DOMA, the patchwork of state laws regulating marriages, civil unions, and domestic partnerships may not be affected.

RELATED: Same-Sex Couples Need Flexible Estate Plans

Alexandra Breed is a director in McLane’s Trusts and Estates Department. She can be reached at McLane’s Concord office at 603-230-4417 or or 603-628-1335.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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