Three States Challenge DOMA on Estate Taxes

The Defense of Marriage Act is under challenge through a unique angle: estate taxes.

The Defense of Marriage Act is under challenge through a unique angle: estate taxes.

CSM (“Federalism fight: 3 states say feds can’t ‘unmarry’ gay couples“):

Three states where members of the clergy and justices of the peace today marry gay couples argued on Friday that it’s a violation of states’ rights for the federal government to then “unmarry” those people under the 1996 Defense of Marriage Act (DOMA).

In an amicus brief to a New York case involving a lesbian widow, Vermont, Connecticut, and New York argue that the federal government had no right, despite the federal designation of marriage as being between a man and a woman, to demand $350,000 in estate taxes when Edie Windsor’s partner died. That would not have happened under a marital tax deduction that lets other married couples pass their assets to their spouse without penalty.

The three states who filed amicus briefs argue that states regulate marriage and family relationships and that Congress doesn’t have constitutional authority to interfere with that license at any level.

Several federal and state judges have struck down parts of DOMA, but it was only earlier this year that a federal appeals court in Boston, called it discriminatory regarding partner benefits, saying the law “fails the test” when looking at its “disparate impact on minority interests and federalism concerns.”

The First Circuit panel, however, did not rule on the most controversial aspect of the law, and perhaps its ultimate federalist test: Whether gay marriages are legal, or reciprocal, in states that have laws against the practice.

I haven’t the foggiest what the Supreme Court will do once this issue gets there—something that’s only a matter of time given the conflicts at the Circuit level.

The power to declare people married has always resided with the states, with DOMA marking the first foray by the federal government into the matter. The fear was that lawsuits pending in several states could have forced those states to allow same-sex couples to marry and that, under the Full Faith and Credit clause, this in turn would have required all 50 states and the Federal Government  to recognize those couples as married.* But we’re now seeing the flip side of the problem: with six states and the District of Columbia recognizing same-sex unions, we’ve got the bizarre situation where one—and only one—class of marriage in those states doesn’t “count” outside their states.

This particular case, interestingly, puts Republican Members of Congress in an odd position. On the one hand, they’re defending DOMA, which is not only the law of the land but enthusiastically supported by their constituents. On the other, they’re having to defend the collection of onerous estate taxes that they oppose in cases involving heterosexual couples. What will Grover Norquist say about this?

*UPDATE:  Indeed, it’s worth noting that, from well before the time the Constitution was written, it’s been understood that marriages that are legally recognized in any country are legally recognized in every other country. So, even if the several states still held the level of sovereignty that they were generally understood to possess prior to the Civil War and the passage of the 14th Amendment, same-sex couples legally married in Connecticut would be afforded recognition as a married couple in Mississippi. The Full Faith and Credit Clause sought to formalize this customary law into the Constitution. DOMA therefore sought to create an exception that’s for all practical purposes a Constitutional amendment.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. DC Loser says:

    Why would the Republicans let principles get in the way of politics?

  2. Tsar Nicholas says:

    Well, DOMA was a bad idea from the get-go, for this and for other reasons. Clinton never should have signed it. Congress never should have passed it. Domestic relations laws are state law matters.

    But the Full Faith and Credit issue is a real snafu. Do Florida and Ohio, e.g., in which same sex marriages are banned via state constitutional referendums, have to enforce such items as alimony, child support, inheritance, forced will shares, etc., for a same sex couple married in New York? For better or for worse that legal quagmire soon will be addressed, and perhaps not to the liking of the chattering classes.

  3. James H says:

    Existing exceptions to the Full Faith and Credit clause can provide some cover for other states.

  4. Console says:

    If there is one damn thing the faith and credit clause was written for, marriage certificates are it. No matter how many blatantly unconstitutional referendums get passed.

  5. Catfish says:

    This is another area that should be the province of the states. How the Federal government fits into this is unknown. Let the states work this out. Marriage should be turned over completely to the churches. The states could designate a legal relationship such as “committed couple” (no polygamy or inter-family deals) for two people (has to be humans!) who have been together for at least a year. I have always thought that it should be stricter requirements for people to marry; maybe then the divorce rate would be lower. But that should certainly be left to the states.
    The Federal government is way overdrawn into provinces that belong to the states and individual citizens. The governors need to stand up and say no, even use nullification if needed.

  6. EMRVentures says:

    It’s often strange how long bad law can stand while waiting for the right case to bubble up through the federal court system, but this seems like the one on DOMA. A woman is being charged $350k in estate taxes for an inheritance from someone to whom she is legally married in New York? It shall be interesting to watch the GOP put aside their reverence to federalism/state’s rights, and their abhorrence fjor estate taxes to defend this one.

    If this gets to the Supreme Court, I have a hard time imagining Scalia, Kennedy and Roberts voting to uphold this one. Even if one dismisses Scalia as a pure political animal who has abandoned legal reasoning in favor of outcomes he prefers, I wouldn’t see the outcome he prefers being the IRS walloping a citizen of New York despite the express written law of the State of New York.

  7. @Tsar Nicholas:

    Do Florida and Ohio, e.g., in which same sex marriages are banned via state constitutional referendums, have to enforce such items as alimony, child support, inheritance, forced will shares, etc., for a same sex couple married in New York?

    Yes, the same as they have to enforce any other court order from New York, regardless of whether Florida likes it or not. Florida has no state income tax; that doesn’t mean that if New York places a lien on a New Yorker’s vacation home for failure to pay his income tax, that Florida can ignore it.

  8. Septimius says:

    Abolish the estate tax. Problem solved!

  9. al-Ameda says:

    … except for the ‘equal protection’ part

  10. Gustopher says:

    In regards to the update, I think it oversimplifies things. If, in 1850, a black man were to marry a white woman in some foreign country, and then settle in Mississippi, she would not have been considered his widow after he was promptly lynched.

    What the law says, and what actually happens, are often two entirely different things. Which is why we can have the unconstitutional DOMA on the books for 15 years.

  11. John D'Geek says:

    So, JJ — if a man marries, say, four women in a state or nation that allows it, does that force the state and federal governments to recognize the relationship(s)? I don’t think so.

    That said, the estate tax is going to far. Not recognizing it as a marriage is not the same thing as not recognizing the partnership. The debate should be over what marriage is, not taxes.

  12. stonetools says:

    I’m going to go out on a limb and predict that the Supreme Court votes 6 to 3 to overturn DOMA, with Kennedy writing for the majority and Thomas and Scalito in dissent.

    IMO, most thoughtful conservatives now understand that DOMA was a mistake.

  13. Dermatint says:

    the Challenge   is superb.