Cross posting from LBN important to all in our Group.

[Ms. Toad]

10. This is the analysis the Supreme Court **should have** done

I've been saying since before the decision that in order to grant Edie Windsor's request in a legally coherent way, the Supreme Court would need to throw out way more of DOMA because the IRS has - for decades - based its recognition of marriage on the legality of the marriage at the time it was created. My example has always been common law marriage. Instead, the Supreme Court waved a magic wand and recognized Edie Windsor's marriage based on state recognition at some time after the actual marriage (and otherwise reputable news sources inexplicably started opining that marital status on the date of interaction with the tax code, in the stat of residence, was how IRS always viewed it).

I am grateful the IRS didn't try to rely on the Supreme Court's legal fiction, and instead fell back on their own longstanding criteria.