What just happened re: DOMA

[Ms. Toad]

49. The distinction between residence and marriage is really a distinction without a difference

The marriage laws have been worked out so that (same gender marriage notwithstanding), the determining factor was the state (or country) in which the couple was married - and the laws that existed in that country when the couple was married.

Taxes (mentioned in that, or another NYT article) are a prime example as one of the federal collections of laws which **supposedly** depend on residency at the time of the interaction with the law.

But the first thing to understand is that all states are obligated to recognize the marriages of all other states and countries from their inception as long as they were legal in the marrying location (again, same gender marriages and a very limited other subset of marriages against which the state has created a legislative history of strong public policy against - plural marriage is the only one I can think of at the moment).

So - had I been married to a man, my Canadian marriage would instantly have been recognized in my residence state. So ceremony and current residence recognition are synonymous for mixed gender couples.

Another example - common law marriages. Even though Ohio no longer recognizes common law marriages, it did once. Those pre-existing marriages are legally recognized in Ohio, even though at the time that couple files their federal tax return it would not be a legally recognizable relationship. But because it was at its creation, the recognition doesn't vanish. And to stretch this example a bit further - say New York doesn't recognize common law marriages. If a couple married at common law moves to New York, it doesn't matter whether they recognize such marriages or not - they are obligated to recognize this couple's marriage based on the fact that it was a legally recognizable marriages during the period of time in Ohio when the marriage was created. So when that couple files their tax return in a non-common law marriage state, what controls is not (as the New York Times article suggested) the laws of the state where they now live - but the legality of that marriage when and where it was created plus the constitutionally obligated reciprocity which requires New York to recognize what it would not otherwise create - and what can no longer be created in Ohio.

Perhaps you are getting the picture. But one more I find particularly fun. My high school girlfriend - whose sex assigned at birth is male, at the time she was still legally a male, married a woman. She has now transitioned and is legally female, without being required to divorce (which is sometimes required). The IRS has issued a ruling that she (and others similarly situated) may file joint federal tax returns because legal recognition of a marriage is based on whether the marriage was legal when and where it was entered into - not on anything (other than divorce) which has happened since then. (Sorry - I couldn't immediately find a link to the letter ruling - but I have seen it.)

So - her same gender marriage is recognized based on the fact that it was a legally recognized marriage at its inception. NOT - as the NYT suggests tax decisions are based - on the residence state's definition of marriage.

So - like I said, despite the hemming and hawing, aside from this decision (which is why I thought they would punt) whether a marriage is recognized by the Federal Government - because of constitutional mandates for reciprocity - really is based on the laws of the ceremonial location - not the residence.

And - that reality makes basing the Windsor decision on New York law in the condition it existed some time after Windsor's marriage was created legal gibberish. Nice that gibberish falls in our direction sometimes - but it will make for some really ugly and messy litigation to sort it all out because it isn't consistent with the rest of marriage law.

People trying to apply the decision to a couple living in Ohio, for example, running off to Iowa to elope - applying traditional analysis - would immediately obtain Federal benefits because Iowa gets to set its own rules and the marriage created in Iowa is legally recognized. But stick Iowa in place of Canada in the decision, and Ohio in place of New York in the decision, and combine that with the very strong states-get-to-decide-who-to-recognize-as-married theme, and you get a very different result. The residence state (think New York in the opinion) in this case chooses NOT to recognize marriage. And Iowa? Well, you see how much play Canada got in the decision (none). It was New York's laws - at the time Edie Windsor's spouse died - which were the determining factor. Not that they had a legally valid marriage from Canada (Iowa).