Freedom to Marry Tells Supreme Court 'It's Time'

[William769]

Set to air one day before the Supreme Court meets for its first private conference of the new session, a national advocacy group has created an ad that argues that "it's time" for the high court to establish marriage equality nationwide.

The 30-second spot, produced by advocacy group Freedom to Marry, will first hit airwaves around Washington, D.C., during the Sunday morning talk shows, the group announced. Starting next week, the spot will be broadcast nationally on network television. Focusing on the critical legal protections denied couples in any of the 31 U.S. states without marriage equality, the ad highlights the dissonance between a society that claims to cherish independence and freedom but relegates many of its citizens to second-class status.

"One nation, indivisible — except if you’re gay," says a narrator in the ad. "In 19 states, gay couples and their children share in the protections that only the freedom to marry provides. In the others, they are banned from marrying. They’re taxed unfairly, denied Social Security and parenting rights, and can lose a family home when their loved one dies. Every day of denial means real harms to real families. It’s time to end marriage discrimination."

In a statement released with the video, Evan Wolfson, the founder and executive director of Freedom to Marry, said, "The ad underscores the human costs of prolonging marriage discrimination. Every day of denial is a day of real and needless injury, indignity, and injustice for too many families across the country — and time matters. America is ready for the freedom to marry, 40 lower court rulings have affirmed the freedom to marry, even opponents are saying it's time to bring the country to national resolution — and it is, indeed, time."

http://www.advocate.com/politics/marriage-equality/2014/09/26/watch-freedom-marry-tells-supreme-court-its-time

[merrily]

1. I wish for equality of all kinds, including marriage equality, with

all my heart, but the Supremes scare me.

My dear hope is that Kennedy will hold fast to the position he staked out in the majority opinion of the Windsor case. However, that case depended on the fact that the relevant state (NY) recognized marriage and the feds were, in theory, refusing to recognize NY's recognition, if you will, because of DOMA. (I say in theory because the feds wanted the widow to win that case.)

Windsor can be distinguished if the relevant state forbids marriage. However, Kennedy's language in that case was pretty broad (as Scalia's dissent scathingly pointed out), so I am going to hope for the best.

[hifiguy]

2. My gut prediction is for a 6-3 vote.

Roberts is very smart, say whatever else you will about him, and will want to be on the right side of history. Chief Justices always think of their legacies when it comes to the Big Issues.

He and Kennedy will in all likelihood join Ginsburg, Breyer, Sotomayor and Kagan for the majority. The Posner opinion in the Seventh Circuit more than provides the intellectual cover for them to do so; it should, it was aimed squarely at Scalia and basically burned his rationales to the waterline and dynamited what was left just for good measure. Posner cordially detests Scalia and thinks he's a phony.

Soapy Sam, Fat Tony and Uncle Ruckus will dissent, and the dissents will be comedy gold.

[merrily]

4. From your mouth to Roberts and Kennedy's ears.

I never read Posner's opinion. I had a hard enough time making it through the Windsor majority opinion and Scalia's dissent. IIRC, there were concurring opinions as well, but I don't remember now.

FYI, Kagan once said, before she became a justice, that outlawing same gender marriage did not violate the Constitution. Not her exact words, but the gist. I read that when she was nominated to the Court.

[hifiguy]

7. It's worth reading Posner's opinion in Wood v. Walker.

He is a wonderfully clear and readable writer even in his judicial opinions. Kennedy is NOT a good writer. He's clunky and stiff as a prose stylist. I do not see any way to reason Posner's arguments away; there is nothing abstract or speculative about his reasoning and he cuts not to, but through the bone. He completely demolishes every justification WI and IN offered. It was a scorched earth opinion and there was nothing left of the state lawyers but some smoking shoes by the time Posner was done with them.

[merrily]

11. Was it wrong to smile when I read your post?

I'm glad it was a great opinion. These things are not easy for me to wade through.

[Volaris]

13. lol @ Uncle Ruckus....heh heh heh.=) fitting though

[awoke_in_2003]

19. And Roberts has a gay cousin...

I am almost willing to bet money he will go the right way. Of course I won't bet, because when I do I jinx things.

[Donald Ian Rankin]

20. My guess is 5/4, and I'm not sure which way.

I guess (although I cannot stress enough that this is only a guess) is that the obvious eight judges will vote party line; I'm not sure how Kennedy will vote.

[Ms. Toad]

9. Actually - the asserted basis was a bunch of hand waving

to get the result they wanted.

For tax purposes, the relevant determination is whether the marriage was legally recognized when and where it was created. When Edie Windsor married, it was legally recognized in Canada where it was created. The fact that the marriage was legally recognized when and where it was created is ALL that matters for Federal recognition of marriage for tax purposes - at least if you are a mixed gender couple.

At the time they married, their marriage was NOT legally recognized in New York. So even if you take the unusual step of looking at whether NY recognized it at the relevant time, you still get a different result.

The time is critical to tax consideration. There are countless judicial (and tax) decisions about common law marriage. They all hinge on the law in the state of creation at the time of creation. If a state recognized common law marriage when it was created, then the marriage was recognized by the state. Ohio, for example, recognized common law marriages through around 1990. If you established a common law marriage before that time, you are just as married as if you had gone to a church or a justice of the peace - and, in order to marry anyone else or change who inherits if you neglect to write a will - you have to go to court to get a divorce. When Ohio changed its laws, the couples who were already married did not automatically become unmarried - because - again - what matters is the status of the law when and where the couple married. And - to finish the picture - that common law mixed gender marriage would also have been instantly recognized in any other state or country.

So back to Edie Windsor and her wife. New York did not recognize their marriage when it was created - and no other point in time matters, from a tax perspective (the context of the case). The justices very carefully did not analyze this major discrepancy.

The decision in the Windsor case was outcome driven - they wanted to honor New York's law, but couldn't come up with a coherent legal explanation because there is none. What that means for how they handle cases where the states have said they don't want to recognize marriages - who knows. Windsor's decision can't be distinguished, because the centerpiece of its decision was legal nonsense.

[merrily]

14. Thanks. I did read the opinion. I think the fact that New York

recognized the marriage at the time of death was very relevant to whether estate tax (aka, death tax) tax should should have been assessed as though they were married, rather than single.

I don't think your comments about common law marriage are necessarily dispositive of the Windsor case. Most states are ceasing to recognize common law marriage, not starting. So, that is very different when it comes to deciding estate tax.

The question in a common law marriage case would be: "Do you take away a right/benefit these people acquired when their cohabitation become a common law marriage, just because the state later changed the law that gave the common law couple that benefit?" Doing that might itself raise a Constitutional question against NY and the feds.

The question in the Windsor case was, "Do the feds take away a right/benefit these people did acquire under state law--which did treat the bequest as marital for purposes of NY state taxes--just because DOMA arbitrarily singles out same gender marriages when it comes to overriding state law as to marital matters? "

Also, New York is not obligated to recognize a Canadian marriage if the Canadian marriage violates a strong public policy of NY (and said public policy of NY is not itself a violation of the United States Constitution).

I do think there was hand waving to reach the result--and am glad of it, even though I don't usually take that stand about the cases of the Supremes or any court. But I do not agree that the hand-waving was about that particular point.

[Ms. Toad]

16. Common law marriage is an example many people are familiar with.

But the principles are the same anytime the federal government has to decide whether to recognize a marriage. The key determinant of whether a marriage is recognized for federal taxes is whether the marriage was valid when and where it was created. If they were a mixed gender couple who resided in Ohio in 1985 and established a common law marriage, and moved later to New York, what matters for deciding their status for federal tax matters is only what happened Ohio in 1985 (absent death or a later termination by a court). New York's recognition, or lack thereof, of common law marriages doesn't even come up when you determine marital status for federal tax purposes (or social security - and likely others - those are the two I am intimately familiar with).

Where Edie Windsor acquired her marital status was not from New York, but from Canada. I would agree more with your analysis if, for example, she had been married in a state which recognize same gender marriages. Then the federal government would be taking away rights a state (other than New York) had chosen to grant. It is hard to wrap your mind around, because for mixed gender couples marriage and the recognition of marriages from another state coincide in time, so you don't normally think of the act the rights originate from - unless you have spent a fair amount of time analyzing marital status for tax or social security purposes. The analysis you work through has nothing to do with the state of residence at the time of interfacing with the tax system - it has to do with the law in the state where the marriage occurred.

(As for strong public policy - that is not just an international matter, the same concept applies to marriages in other states - and if you read the opinion carefully, you will note that the decision and later interpretations do not distinguish state marriages from international marriages. )

[merrily]

24. We just disagree on the deprivation of a marital right

Last edited Mon Sep 29, 2014, 09:23 AM - Edit history (4)

that had previously vested being the same as a state newly recognizing a marriage. I think a court would easily distinguish the two, as stated in my previous post. Beyond that, as I posted earlier, that is irrelevant to the Windsor case anyway.

Of course, common law marriage is a type of marriage with which many people are familiar and all people are familiar with marriage performed pursuant to a marriage license. In the US, anyway, those are the only two kinds of marriage that ever existed, as far as I know.

FYI, conflict of laws does applies to the law of another nation, as well as the to the law of a different state. Always did, even before US states existed.

International law is the reason that one state gets to avoid recognizing the law of another state on public policy grounds, despite the full faith and credit clause of the Constitution: Each US state is analogous to a sovereign foreign nation, except to the extent that the Constitution subjugates all states to federal law.

If someone marries a shoe in Paris, NY would certainly have a right to say that it's public policy prevents it from recognizing that marriage, even if France recognizes it.

http://en.wikipedia.org/wiki/Conflict_of_laws

Common sense: No reason at all that NY be freer to hold the law of a sister state invalid as against NY public policy than to hold the law of a foreign nation invalid. If anything, the opposite would be so under the Full Faith and Credit clause.

Also, even though NY did not issue marriage licenses to same gender couples until 2011, it recognized same gender marriages performed in certain other locations, including Canada, before then.

http://www.nytimes.com/2008/02/02/nyregion/02samesex.html?_r=0

The opinion is dated 2008 and the Canadian marriage was in 2007, but nothing in the opinion limits the holding to marriages performed out of state during or after 2008.

Besides, if the issue is estate tax, what matters is if the couple was validly married when death occurred or not. Clearly, this couple was.


However, again, as to Windsor, that is legally irrelevant because the issue was DOMA vs. New York law, not Canadian law vs. DOMA or Canadian law vs. NY law; and NY recognized the marriage, including for NY state estate tax purposes.

So, again, while I think Kennedy may have done some hand waving on other issues, I don't think he was hand-waving on this issue.

[Ms. Toad]

25. As I said - strong public policy also applies to inter-state recognition of marriages.

That is the reason that when states pass marriage discrimination laws that they include "strong public policy statements" in the legislative history - so they can refuse to recognize same gender marriages conducted in another state. Rosengarten v. Downes, 802 A.2d 170, 174-7 (Ct. App.Conn. 2002), Wilson v. Ake, 354 F.supp.2d 1298 (2005); The Restatement (Second) of Conflict of Laws states that a “marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”

As to the hand waving - I agree they were looking at DOMA v. New York law - that is where the hand waving comes in. Whether the state in which you are living at the time of interaction with the tax code recognizes your marriage is not the test that has ever been used for determining marital status with respect to federal taxes. The relevant point in time is the creation of the marriage - which Windsor never analyzed. If it had, it would have reached a different result (because it acknowledged that NY did not recognize their marriage at that time) - OR - it would have had to invalidate more of DOMA than it did (by determining that it was unconstitutional for states to refuse to recognize the marriages performed in other states). The Court never explained why it did not evaluate their marital status at the place and time that it has always previously applied to such marriages - that of its creation.

The reasoning I have laid out is precisely the basis for IRS recognition of same gender marriages in the wake of Windsor - the reasoning ignored by Windsor:

The Service therefore held that a taxpayer who enters into a common-law marriage in a state that recognizes such marriages shall, for purposes of Federal income tax filing status and personal exemptions, be considered married notwithstanding that the taxpayer and the taxpayer’s spouse are currently domiciled in a state that requires a ceremony to establish the marital relationship. Accordingly, the Service held in Revenue Ruling 58-66 that such individuals can file joint income tax returns under
section 6013 of the Internal Revenue Code (Code).

...

Consistent with the long standing position expressed in Revenue Ruling 58-66, the Service has determined to interpret the Code as incorporating a general rule, for Federal tax purposes, that recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile. . . . For over half a century, for Federal income tax purposes, the Service has recognized marriages based on the laws of the state in which they were entered into, without regard to subsequent changes in domicile, to achieve uniformity, stability, and efficiency in the application and administration of the Code.

In other words - from the perspective of the IRS, the law of the married couple's place of domicile (i.e. NY) is irrelevant to its determination of marital status for Federal tax purposes. It was in framing (or answering) the question as NY v. DOMA is the hand-waving that the hand waving took place - since it was not looking the point in time which the IRS has used for "over a half a century."

The Court was certainly free to decide a different point in time is relevant - but without providing an explanation as to why they rejected the 50+ year standard, it is hand waving. They never gave an explanation - and their lack of explanation gave rise to numerous incorrect assertions by reputable entities (NY Times and NPR to name two) about what point the IRS uses to determine marriage. (Unfortunately I can no longer find those early explanations to link to, but long before the formal IRS ruling came out, I knew the NY Times and NPR were also trying to make sense of Windsor's silence and - in an attempt to explain it - got the tax law wrong.)

[merrily]

27. Thanks. I'll stick with my prior posts to you on this.

[Behind the Aegis]

3. Hard to get my hopes up.

I try to be positive, but I am really not. To be honest, I am afraid it will fail and thereby embolden the right, and our "allies" on the left will be little help (note the quotes).

[merrily]

5. ...

I wish you could come to Massachusetts.

[William769]

12. I refuse to accept anything but success.

Yes I may be overly optimistic but until the final verdict is in, I feel I hove no other choice.

I felt like you a couple of years ago. Lets hope for the best & prepare for the worst.

[merrily]

15. +1.

[Terra Alta]

6. I'm cautiously optimistic.

I think the Supreme Court will go the right way on this issue, but it all comes down to how Kennedy votes.

[William769]

10. Thats how I feel.

[RKP5637]

8. K&R !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[Iliyah]

17. Freedom and Equality will succeed

I know in my heart it will prevail.

[William769]

22. I am right there with you!

[Cha]

18. Equality~Freedom to Marry~

Excellent Ad, William.. Mahalo!

[William769]

21. I am hoping to catch it on television in the next couple of days.

[Cha]

23. I hope you see it, too.. I don't have one of those TVs..

[RKP5637]

26. I just saw it this morning, great ad. n/t

[RKP5637]

28. I have little faith in SCOTUS to rule fairly, some are just another political operative, but

that said, I remain hopeful.