Now that the Supreme Court of the United States has decided that it will accept jurisdiction to determine whether or not Section 3 of the Defense of Marriage Act (DOMA) is constitutional as to federal rights under section 3 of DOMA, we have to start making our wish list for the future. Recently the Powerball was at $579 million, and people throughout the United States were making their wish list of what they would do with those funds if they won. By accepting jurisdiction, the United States Supreme Court gives us the opportunity to make that wish list for same-sex couples now.
Currently, federal law prohibits the recognition of same-sex couples and only recognizes "a legal union between one man and one woman as husband and wife," and similarly it defines "spouse" as referring "only to a person of the opposite sex who is a husband or a wife." Thus DOMA prohibits the recognition of same-sex couples who are legally married, whether in the United States or in a foreign country, for any form of legal protection, responsibility, obligation or benefit.
Nine states -- Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington -- and the District of Columbia issue marriage licenses to same-sex couples. Additional, Rhode Island recognizes same-sex couples married elsewhere, and eight states -- California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island -- provide equivalent state-level spousal rights to same-sex couples, whether in the form of civil unions or domestic partnerships. Including Colorado and Wisconsin, which grant statewide spousal rights to same-sex couples, there are a total of 20 states and D.C. that recognize some form of legal relationship between same-sex couples, but the federal government does not.
According to the 2010 U.S. Census, there were 646,464 same-sex couples who self-identified as such, and 131,729 of them had valid legal marriages. This means there are more than 500,000 unmarried same-sex partner households in the United States that could benefit from the federal recognition of same-sex marriage that would come with overturning DOMA.
The United States General Accounting Office determined that there are 1,049 federal laws classified in the United States Code in which marital status is a factor. These laws are defined as benefits, rights and privileges that are contingent on marital status. Some of these pertain to Social Security benefits, housing, food stamps, veterans benefits, taxation, civilian benefits, military benefits, employment benefits, immigration and naturalization laws and benefits, crimes and family violence, financial disclosure and conflict of interest, family rights, loans, guarantees and payments, and a myriad of miscellaneous acts to which most of us are not accustomed. DOMA is denying the right of valid, legally married households to participate as full-fledged citizens of the United States.
Last month's election demonstrated the will of Americans to ratify and recognize marriage equality. DOMA must fall; however, we are not in a position now to lobby the U.S. Supreme Court. Through its nine justices the court must recognize the will of the public and the U.S. Constitution and give equality to all validly recognized marriages. We need to urge members of the U.S. House of Representatives and the Senate to strike down DOMA and repeal it. President Obama instructed Attorney General Eric Holder not to enforce DOMA. Now is the time for the U.S. Supreme Court to repeal DOMA and recognize marriage equality.
So what is your wish list? Equality through Social Security? Estate planning through your counsel so that there is equality in the passing of inheritance rights for same-sex married couples? Filing joint tax returns if appropriate? Securing equality in benefits, either civilian or military? Not incurring additional legal fees just because you are a same-sex couple and not recognized by federal law? Go ahead and dream. Think of what the recognition will mean to each one of you. Now is the time to plan. Contact your professional advisors and start discussing what rights you have currently and how those rights will change when DOMA falls. Get your life and estate plans in order and keep prepared. DOMA will fall like the Berlin Wall.