On March 29, 2012, I was given the honor to speak at the Black Women Lawyers’ Association of Greater Chicago (BWLA) CLE program on LGBT Employment and Relationship Rights Discrimination. My commentary addressed the challenges DOMA creates for members of the LGBT community and those providing them with needed services.
If you’re unfamiliar with the so-called Defense of Marriage Act, or DOMA, the statute’s language states that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or wife.” DOMA also states that this definition of marriage is the legally recognized definition for any federal or congressional law, “ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” Accordingly, if a federal law or regulation concerns married persons, the definition of ‘marriage’ used to determine the applicability of the law or regulation will be DOMA’s definition, despite what state law says.
DOMA is the first time since Loving v. Virginia that a branch of our government defined what a marriage can look like, and, although the court in Loving got it right, Congress and President Clinton with DOMA got it wrong. Consequently, because of DOMA, gay or lesbian couples cannot take advantage of the more than 1,000 benefits afforded straight married couples by the federal government, even if the couple resides in a state that recognizes same-sex marriages.
This unfair result is the basis of current court challenges: Gill v. OPM, Windsor v. U.S., and Golinski v. OPM. Each case involves the denial of federal benefits, such as retirement, social security, and estate tax refunds, to LGBT couples. Consequently, it should be easy to see how this discriminatory law has caused significant and unnecessary implications for American citizens and the estate planning community.
One BWLA program attendee asked if straight couples could benefit from the Illinois Civil Union Act that affords LGBT Civil Union partners all the obligations, benefits, responsibilities, and protections of Illinois married couples. Ironically, a recent article in the Illinois Bar Journal espoused the benefits straight couples could glean from entering into a Civil Union instead of getting married. My colleague used the Alternative Minimum Tax calculation to support her argument, dismissing the marital deduction and portability “issues” because these techniques are applicable to the very wealthy and impliedly are outliers. This is a reasonable argument for lower-income families; however, repeating the response I gave at the program, suggesting heterosexual couples enter into Civil Unions is questionable guidance because of the more than 1,000 federal benefits attached to marriage. Thus, if a heterosexual couple is considering a Civil Union and is not approaching or is not in retirement, a careful balancing of income tax liabilities and other assets and future income should probably be performed before considering a Civil Union. What may be gained in an income tax refund may be lost several times over in employee, health, and other benefits.