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«THE “FEDERAL LAW OF MARRIAGE”: DEFERENCE, DEVIATION, AND DOMA W. BURLETTE CARTER I. Introduction II. American Notions of “Local” Matters A. Origins 1. The Colonial Experience 2. The Notion ...»

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The argument supporting this DOMA, if any, is that DOMA is an integral part of a comprehensive legislative scheme supporting procreation by heterosexual couples. The problem is that, as I have shown, not all federal statutes vindicate the procreation goal, and this DOMA also burdens rights traditionally reserved to the states while denying same-sex couples fundamental rights affecting the family. Because it bundles family rights with other rights, this DOMA should be subjected to heightened scrutiny and should fall under Equal Protection, as it did in Windsor.

The second DOMA is a statute that collapses into each underlying statute that it defines. The argument supporting this DOMA is that it is authorized by and it is integral to each of those underlying statutes. More likely, this DOMA would survive in some cases, but fail in others. Whether or not the second DOMA stands—the one that collapses into the underlying statutes—depends upon which federal policy is at issue.

Then there is the third DOMA. This DOMA is definitional. This DOMA does not tell Congress how to allocate marital benefits. It simply limits how Congress can use the term “marriage.” As applied to all statutes this DOMA, should also fail because the definition cannot be sustained in all cases, especially without an alternative regime. However, this DOMA may be valid in some circumstances where Congress intended to uniquely address historical gender discrimination through marriage or the procreational situation of the heterosexual couple.

VIII. APPLYING THE STANDARDS TO THE WINDSOR CASE

How does the Windsor case come out under this proposal? The plaintiff sought a refund of federal estate taxes paid because she was denied the estate tax marital deduction after the death of her spouse. The Windsor case is complicated by several facts. First, she was married in Canada and at the time of her spouse’s death, her domicile of New York did not recognize same-sex marriages either directly or under its conflict of law rules. Second, opinions indicate that neither litigants nor the federal courts focused upon whether she had already applied for a refund of state estate taxes or whether New York had already determined that it would retroactively apply its own same-sex marriage laws and grant the tax refund. The Second Circuit simply assumed that New York law would control whether or not she was “married” and predicted New York would conclude that she was based on New York precedent recognizing 790 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 foreign same-sex marriages for inheritance purposes. It may not be that easy.351

351. Below, BLAG challenged Windsor's Article III standing and lost, but seemed to concede that state law controlled the question of whether her marriage was valid at the relevant time. See Windsor v. United States, 833 F. Supp. 2d. 394, 398 (2012), aff'd 699 F.3d. 169, 176, 177-78, cert. granted, 133 S. Ct. 786 (2012); Brief in Opposition at 18-19, United States v. Windsor, 133 S. Ct at 786 (opposing the petition to writ of certiorari before judgment and discussing state law as controlling). The Second Circuit looked to New York law to determine whether or not New York would retroactively consider them married at the time of the spouse's death, and it decided that New York would. Windsor v. United States, 699 F.3d 169, 176, 177-78 (2012). It did not mention whether or not Windsor had filed an original claim or refund with respect to her New York state estate taxes as “married” under New York law. Neither the district court nor the Second Circuit considered that federal law might well determine retroactivity e.g., the time as to which a requirement to be satisfied under state law is to be met for purposes of federal law, even if state law would govern whether a same-sex marriage is cognizable.

Windsor's complaint stated that New York "recognizes [the couple's] marriage" and that it "provided them with the same status, responsibilities and protections, as other married people.” Windsor Complt. at 4, p. 2. In her brief to the Supreme Court, Windsor stated that the IRS denied her claim because both spouses were women and the deduction did not apply due to DOMA. Brief on the Jurisdictional Questions for Respondent Edith Schlain Windsor, at 5, Windsor, 133 S. Ct. at 786. The brief also asserted that New York denied her the state marital deduction because that "[a]t the time, New York State for purposes of imposing its own estate, calculated the value of a decedent's estate by reference to the estate's federal tax liablility" and that "[t]hus the IRS's decision meant" that Windsor owed New York state estate taxes. Id. at 5, n.2. It said that Windsor has filed a "protective" claim in New York. It did not indicate that a copy of the claim was a part of the Appendix filed with the Supreme Court or part of the record below and this author does not have access to all of those records.

While many states do choose to look to federal law with reference to their own estate taxes, at the time, New York also still had the right to calculate her liability with reference to whether New York considered her married or not. New York was not required to follow federal law on that marriage determination. Thus it is important to know whether New York denied the request to treat her as married when she filed her return, or whether Windsor only asserted it at a later point. The question of retroactivity for state estate tax purposes is a New York question. If state law governs retroactivity, as the parties suggested to the Second Circuit and as it then opined, then New York’s decision governs in both cases. Moreover, a state determination should arguably be a prerequisite to a federal determination. Otherwise, a state could later say “no retroactivity for purposes of state law” and then the very basis for a filer's win on the merits would be ripped from under her—but the filer might already have been paid the federal refund. A federal court has the means to certify the question to the state's highest court or to require that a taxpayer ask the state tax authorities to rule. To predict state law in that circumstance in such a political context, affects the ability of a state to determine to the contrary later as it has a right to do. If federal law governs retroactivity then the question is whether even if DOMA is unconstitutional, that ruling should be retroactively applied in the tax context to a marriage that even a state itself did not recognize at the relevant time. The timing of Windsor's claim with New York state—how she filed at first and when she filed for a refund—may also matter to standing.





The impact of a decision on retroactivity relates to more couples than those like 2013] THE FEDERAL LAW OF MARRIAGE 791 Nevertheless, assuming one can validly reach the merits, claims like Windsor’s Equal Protection claim should likely be reviewed under a rational basis test. I concede some good arguments that taxation of inheritances presents a “hybrid” case and should have the favor of a heightened standard.

Descent and distribution are traditionally state areas of interest. While the actual passing of property is not hindered, the tax reduces the amount of property that can pass at death and the government taxes some property that is normally within the power of the state to control. Thus, a higher tax on inheritances between same-sex spouses straddles the line between denying family rights and denying economic rights. Moreover the tie to procreation appears distant, at least as the deduction is presently designed. On the other hand, the federal government has always had broad power to determine taxation. It needs that flexibility; and, despite claims of some that the rational basis standard is too watered down to be meaningful, absent a procreational interest, a rational basis test should be sufficient to determine a case like Windsor’s in her favor with respect to both state and federal property.

As I have argued, in Part V(B)(4), there is no demonstrable link between the modern marital deduction and procreation and, I would argue, no rational basis for denying the claim. Awarding the deduction is also otherwise not contrary to federal public policy. Indeed, while the impact of the deduction for Windsor is quite large, the impact on the federal purse will be relatively small because so few married couples of any orientation have estates large enough to qualify for it. Finally, while the deduction does not restrain the ability of the couple to be a family, it touches upon inheritances within families, thereby burdening the state’s attempt to have Windsor treated just like other families within the state.

Windsor who went ahead and married despite law. It is reasonable to ask why retroactivity should not also be applied to those couples who wanted desperately to marry but concluded the act of legal marriage would be legally fruitless or who could not afford to travel to abroad or to another state to be married, or who entered into civil unions or domestic partnerships, some prior to their state later adopting marriage in fact. What of those who still cannot marry under state law? How far back should retroactivity go? Both state and federal governments must also consider whether the retroactivity principle is limited to estate taxes (and if so, why?) or whether it applies more broadly to other areas of taxation.

Another approach to the question, considering conflict of laws theory and the Constitution, is to consider whether the U.S. is required to retroactively recognize a Canadian same-sex marriage—which is the place that recognized the marriage as a valid marriage ceremony at the relevant time. If the answer is that the federal government should have recognized the Canadian marriage as qualifying at the time of death (e.g., the application of DOMA should be seen as violating Equal Protection at the time), the retroactivity problem disappears because the marriage was current at time of the spouse's death. But this case has the wrinkle that the state of domicile would not have recognized the marriage at the time, federal tax laws do normally look to the state of domicile for defining marriage in the tax context, and so the argument exists that the federal government should recognize it for the purpose of branch rights only if the several states would or if the state of domicile would have at the relevant time—unless, of course, following state law would be deemed to be violating the federal Constitution.

792 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 Consequently, on the merits, if the home state would grant a marital deduction refund based on retroactive recognition of a marriage, Windsor and those like her should get the federal refund.

IX. CONCLUSION

The battle over same-sex marriage is, broadly viewed, not merely a battle over marriage but a battle over families: Who can form them? Whose will be most financially and socially successful? Whose receives the most publicly funded benefits? But it is also a theoretical battle over what burdens we in the United States believe should be publicly supported and which ones we think should be privately borne. At the center of that latter battle is procreation.

Many different groups are competing for financial benefits out of the public purse. Same-sex couples comprise only one such group. Beyond the treatment of same-sex couples one can criticize our current procreation centered approach for biases against the middle and lower classes, biases against women, and biases against minority groups. Not all of these biases are illegal under current law.

As I have argued, support of procreation has long been a part of federal marriage policy. It remains so today. If a procreation policy is to survive, Congress must be able to reserve lanes of legal space for the funding of differently situated families within that regime. Heterosexual married couples are marked generally by the risk of accidental pregnancies, a history of gender discrimination through marriage, and an imbalance in procreational position between them. The more that parties who do not share the same interests or concerns are added to the procreation lane, the more rapidly legal precedent will erase or dramatically transform any protection or benefits intended to deal with that unique situation. While current federal marriage policy continues to discriminate against procreating women, abandoning a procreation based marriage regime will not resolve those problems. Indeed, it may make the situation worse.

So long as the United States continues to use marriage as a primary means of supporting natural procreation, I believe that Congress is entitled to use heterosexuality as a lane marker for procreation-related benefits, subject to a rational basis test. Congress has a right to design a scheme that does not make heterosexual marriage less favored by those it wishes to encourage to undertake because the financial benefits measured against the financial costs of procreation within marriage are not compelling in a larger market. Congress is also entitled to address gender inequality in heterosexual marriage uniquely given the long history of the same and its distinction from sexual orientation discrimination. It is constitutionally defensible, if not wise, for Congress to create zones of interest in family policy in order to give voice to the different interest groups, remedy the ills of concern, and in order to give voice the very procreation-related concerns that are, this writer believes, the only legitimate reason for state or federal governments to be involved in financing marriage.

Overinclusiveness of heterosexual couples who do not procreate or have not 2013] THE FEDERAL LAW OF MARRIAGE 793 shown they can is not desirable, but may be unavoidable. The issue here is not who will receive financial benefits (which may be dispersed within or without marriage), but rather who will receive those benefits through financial policies that are tied to marriage. The arrangement disadvantages the children of samesex couples, but no more so than the children of unmarried heterosexual couples, the latter of whom definitely procreate naturally but do not receive for their children benefits related to marital procreation.

It is not correct to suggest, as some have, that adding new couples to an economic benefit does not diminish the rights of those already enjoying the benefit.352 Economic benefits operate in a larger marketplace, and a benefit given to one group repositions the actors in that marketplace vis-à-vis others.

Indeed, that repositioning in the economic marketplace is the very point of the benefit.

The history of marriage in the United States has been both a history of using marriage to support procreation and using marriage to promote discrimination.

Both strands are present in DOMA and the Court wisely struck its broadest variation down. But as discussion of what Congress can do now moves forward, the courts should strive hard to respect Congress’ right to set the priorities for public funding that “the people” favor, while still requiring Congress to adhere to the principles of federalism and Equal Protection in the Constitution. Congress’ failure is not that it has not given exactly the same benefits to same-sex couples and opposite sex couples but rather, that in marital and family funding policy, it has not considered the rights of same-sex couples at all. The courts should require it to do so, but also give Congress the leeway to consider not just the narrow theater of litigation where those with time and resources contend, but also the entire landscape of families and individuals, all of whom should be considered as Congress makes family funding decisions.

352. See, e.g., Mass. v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 3 (1st Cir. 2012) (suggesting that DOMA does not increase benefits for heterosexual couples nor do its defenders show how denying same-sex couples benefits would encourage

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