On Wednesday, the Supreme Court of the United States issued a number of slip opinions. Two of these opinions concerned various laws which impacted gay marriage. What impact do each of these cases have on family law in Texas?
One, Hollingsworth v. Perry, resolved the question of whether a private organization had standing to defend California’s Proposition 8, which defined marriage as being between one man and one woman. In Hollingsworth, various California government officials were named as defendants in a lawsuit filed by a gay couple seeking to have Proposition 8 declared to be in violation of the United States Constitution. The named officials declined to defend the litigation. A private group in favor of Proposition 8 decided to step in and defend the law in the place of the named officials. Ultimately, the Supreme Court of the United States decided that the private group did not have standing to defend the law, so the case was remanded to the trial court to proceed without the defense of the private group.
The other, United States v. Windsor, was concerned with whether a woman legally married to another woman was entitled to claim exemptions on federal taxes applied to inheritance that are available to those married to spouses of a different gender. Under the federal Defense of Marriage Act (DOMA), marriage is defined for the purpose of federal law as being between one man and one woman. This definition had the result of disallowing gay couples legally married in states recognizing such marriages from being allowed to claim a variety of benefits under federal law otherwise granted to married couples of different genders. Ultimately, the Supreme Court of the United States ruled that DOMA violated the Equal Protection clause of the Fifth Amendment to the United States Constitution because it treated people legally married to someone of the same gender differently from those legally married to someone of a different gender.
For our purposes today, the only question I wish to address is the impact this could have on Texas law. The short answer is that it will have no direct impact on Texas law in the short term, but may have some impact on those residing in Texas who have entered into legal same-sex marriages in other states.
First, let’s dispel any myths about these rulings. Hollingsworth did not directly touch upon the question of whether a state can outlaw gay marriage. The Supreme Court of the United States has long had the policy of attempting the resolve cases before it on procedural grounds first, if possible, before approaching substantive issues. In this case, it had to first determine whether the private group defending Proposition 8 had standing to defend the law. Once the Court determined that there was no standing, the remaining questions are left unanswered under the rationale that the case should not be before them to begin with. Therefore, while the trial court ruling that Proposition 8 is unconstitutional will likely be the final result in Hollingworth, that ruling has no impact on the law in Texas which prohibits recognition of same-sex marriages.
As for Windsor, the impact is a bit more direct for some Texans. The fact that Texas does not recognize same-sex marriage does not prevent the federal government from recognizing such marriages for limited purposes. Also, many states that permit same-sex marriages do allow out-of-state residents to marry in their state. Therefore, there are a number of same-sex couples in Texas, who married in other states, who now have the following rights they were previously denied under DOMA:
- One of the most sweeping impacts will be on same-sex couples where one or both of the spouses are members of the Untied States Armed Forces. Despite the lifting of the “don’t ask, don’t tell” policy, the Pentagon was otherwise prevented from extending many benefits to same-sex couples in the military due to DOMA. Now, those couples will receive many, if not all, of the benefits that spouses of different genders now enjoy, including health care benefits, access to military bases (which include base exchanges), increased housing allowances and survivor benefits.
- Same-sex couples in Texas and elsewhere who are legally married may now file their federal income taxes jointly as marred. This could provide substantial cost savings on tax bills, especially if one spouse earns a substantially greater salary than the other spouse.
- Under the federal Employee Retirement Income Security Act (ERISA), employers will now be able to offer health care and other regulated benefits to the non-employee same-gender spouse of an employee with the same beneficial tax treatment that is now extended to spouses of different genders.
- Same-sex spouses will now qualify to receive Social Security survivor benefits.
- Same-sex spouses will now be recognized for immigration purposes, opening the door to allow the issuance of fiancee visas and a path to permanent residence and citizenship for those same-sex spouses of United States citizens.
The list could go on for some time, although I believe the above changes to be the most impactful for same-sex couples in Texas and elsewhere.