# DOMA struck down in a 5-4 decision **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2013, 3:06pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962 "2013-06-26T15:06:52Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![sachertorte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sachertorte/32/3727_2.png) [@sachertorte](https://boards.straightdope.com/u/sachertorte)\ **Post date:** [June 26, 2013, 8:20pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/61 "2013-06-26T20:20:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The estate tax refund claim was the basis of the underlying lawsuit, so yes, she’ll get them back automatically. > > And yes, married filing benefits will now be available to same-sex couples, though the IRS will have to modify its regulations first. This is the immediate question for me, personally. I’ve been filing as married for Massachusetts and Single for Federal for years. Now I’ll be able to file as married for the Federal, but will that be for Tax Year 2013 or Tax Year 2014? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2013, 8:24pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/62 "2013-06-26T20:24:25Z")
> [@sachertorte](#): > > This is the immediate question for me, personally. I’ve been filing as married for Massachusetts and Single for Federal for years. Now I’ll be able to file as married for the Federal, but will that be for Tax Year 2013 or Tax Year 2014? And if SSM is a fundamental right (at least in your state) shouldn’t you get refunds from the date you were married up until the present day? If the feds are violating your rights in 2013, they were doing so in 2004. I haven’t seen any new constitutional amendments passed since then. ---
**Author:** ![aNewLeaf](https://avatars.discourse-cdn.com/v4/letter/a/ac91a4/32.png) [@aNewLeaf](https://boards.straightdope.com/u/aNewLeaf)\ **Post date:** [June 26, 2013, 8:24pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/63 "2013-06-26T20:24:30Z")
> [@tomndebb](#): > > Heterosexual marriage is as ancient as humanity, as nearly as we can tell.. All flavors of marriage have long been used by humans everywhere. Polygamy is more common than monogamy throughout history, but that’s not the standard today. Looking to the past for guidance today needs to be approached from an informed viewpoint. Heteropatriarchy is primarily an economic system, and one that is not necessarily required today. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [June 26, 2013, 8:25pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/64 "2013-06-26T20:25:41Z")
> [@sachertorte](#): > > This is the immediate question for me, personally. I’ve been filing as married for Massachusetts and Single for Federal for years. Now I’ll be able to file as married for the Federal, but will that be for Tax Year 2013 or Tax Year 2014? And what about 2011 and 2012? (That’s a serious question: I don’t know how declaring something unconstitutional affects the past.) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2013, 8:26pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/65 "2013-06-26T20:26:19Z")
I didn’t see it addressed in the opinion, but let’s say Utah legalizes polygamy. Must the feds recognize a man and his 15 wives for federal income tax purposes? Do you get an increase exemption for each spouse? If not, that would seem to violate the invisible equal protection clause of the 5th amendment. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [June 26, 2013, 8:27pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/66 "2013-06-26T20:27:33Z")
> [@aNewLeaf](#): > > All flavors of marriage have long been used by humans everywhere. > Polygamy is more common than monogamy throughout history, but that’s not the standard today. > Looking to the past for guidance today needs to be approached from an informed viewpoint. > Heteropatriarchy is primarily an economic system, and one that is not necessarily required today. And the idea of marrying someone because you love them is a relatively new idea. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [June 26, 2013, 8:31pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/67 "2013-06-26T20:31:58Z")
> [@Dr.Drake](#): > > This is fascinating. So, as an American who resides and married abroad and maintains no ties of residence to any US state, whether it’s legal or not would depend on my intended destination? If I had, say, a job waiting in Philadelphia (where I understand SSM is illegal) but claimed we’d live in New Jersey… wow, what a headache. I imagine this is going to have to get sorted on a federal level sooner or later. > > Equally, I imagine this would give the individuals processing applications some wiggle room to express their personal discrimination. Not that I expect that, but I can imagine it happening. On a practical level, if it’s enforced the way I think it might be, I could see the Feds doing something like they do with cousin marriage or domicile for Affidavit of Support purposes; the U.S. citizen spouse would need to show intended domicile at a particular location in the U.S. Generally this means having a residential address and documentation to prove it, such as a lease/property ownership docs, job offer with a U.S. employer, driver’s license, bank account or other financial correspondence with a U.S. address (in this case, in a particular state), voter registration, that sort of thing. As a practical matter, the people we work with are usually relatively young and have parents or other family members whose U.S. address they can use for issues like this. And yes, it sure as hell is going to need to be sorted out, and the interim is going to be kind of a train wreck. ---
**Author:** ![sachertorte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sachertorte/32/3727_2.png) [@sachertorte](https://boards.straightdope.com/u/sachertorte)\ **Post date:** [June 26, 2013, 8:32pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/68 "2013-06-26T20:32:25Z")
> [@jtgain](#): > > And if SSM is a fundamental right (at least in your state) shouldn’t you get refunds from the date you were married up until the present day? If the feds are violating your rights in 2013, they were doing so in 2004. I haven’t seen any new constitutional amendments passed since then. Well… in my case, filing married costs me more so 😃 But your point is sound for all the other couples who paid more by having to file single. I just hope the IRS doesn’t come after me for back taxes! :eek: ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 26, 2013, 8:49pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/69 "2013-06-26T20:49:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > _ahem_ NO. The scenario was not that it would get retried by the lower court, but that it would be reappealed to SCOTUS by someone with standing. I don’t see how your answer covers this situation. Would a court with dramatically changed composition who wanted to rule on the constitutionality of anti-SSM laws be able to rehear the appeal? Practically speaking, I’d guess they’d prefer to take a case from another state which will no doubt show up eventually. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 26, 2013, 9:08pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/70 "2013-06-26T21:08:15Z")
Can one of our lawyers explain if Scalia is right or not in saying that this decision will mean the nullification of any state’s ban on SSM if challenged in federal court? Seems to me that it will. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2013, 9:10pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/71 "2013-06-26T21:10:54Z")
> [@John\_Mace](#): > > Can one of our lawyers explain if Scalia is right or not in saying that this decision will mean the nullification of any state’s ban on SSM if challenged in federal court? Seems to me that it will. That’s probably overstating it. The Kennedy opinion is like a slippery eel. There’s enough talk of federalism and enough talk of how the opinion is limited that lower courts are going to have to grapple with the same questions they would have grappled with pre-_Windsor_. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2013, 9:14pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/72 "2013-06-26T21:14:01Z")
> [@John\_Mace](#): > > Can one of our lawyers explain if Scalia is right or not in saying that this decision will mean the nullification of any state’s ban on SSM if challenged in federal court? Seems to me that it will. I don’t think any lawyer here can answer that. The only person who can answer that is Justice Kennedy. Is the bone he tossed to federalism enough in his mind to make a distinction between state and federal marriage laws? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 26, 2013, 9:37pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/73 "2013-06-26T21:37:50Z")
> [@jtgain](#): > > I don’t think any lawyer here can answer that. The only person who can answer that is Justice Kennedy. Is the bone he tossed to federalism enough in his mind to make a distinction between state and federal marriage laws? Did he say the ban violated a part of the constitution that has been incorporated for the states? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 26, 2013, 10:03pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/74 "2013-06-26T22:03:15Z")
> [@Voyager](#): > > The scenario was not that it would get retried by the lower court, but that it would be reappealed to SCOTUS by someone with standing. I don’t see how your answer covers this situation. Would a court with dramatically changed composition who wanted to rule on the constitutionality of anti-SSM laws be able to rehear the appeal? Practically speaking, I’d guess they’d prefer to take a case from another state which will no doubt show up eventually. It can’t be “reappealed”. The trial court’s decision is now final. The validity of Prop 8 can no longer be raised in any trial. > [@John\_Mace](#): > > Did he say the ban violated a part of the constitution that has been incorporated for the states? He strongly implied it. I share jtgain’s frustration at his refusal to apply elevated scrutiny (though for different reasons.) We’re still in limbo. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2013, 10:28pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/75 "2013-06-26T22:28:38Z")
> [@John\_Mace](#): > > Did he say the ban violated a part of the constitution that has been incorporated for the states? He used the equal protection component of the due process clause of the 5th amendment. The only basis for that reading was the companion case to Brown v. Board of Education discussing segregated schools in D.C. (Sharpe v. Bollinger). The Court stated that the equal protection clause of the 14th amendment was “reverse incorporated” into the 5th amendment on the idea that it would be an absurd result to say that every state had to provide its citizens with equal protection of the laws, but the federal government did not. So, if we are using legal logic (which I’m not counting on with Kennedy) since both equal protection clauses are exactly the same, then I don’t see how the 14th as applied to SSM to the states would be different from the 5th applied to the feds. My prediction is that Kennedy is all in favor of striking down state laws against SSM, but he doesn’t want to author this generation’s Roe v. Wade that will cause massive criticism of the Court. He will wait a few years until, say 30 states have legalized SSM, and when he is safety retired, another Court can use the “evolving standards” argument to push SSM on the holdout states. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2013, 10:31pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/76 "2013-06-26T22:31:02Z")
> [@jtgain](#): > > So, if we are using legal logic (which I’m not counting on with Kennedy) since both equal protection clauses are exactly the same, then I don’t see how the 14th as applied to SSM to the states would be different from the 5th applied to the feds. The answer, according to Kennedy, is that this particular form of discrimination is being done by the federal government against the states. What does that mean, precisely? Kennedy doesn’t say, of course. But that’s not the same thing as not having any way to distinguish the case. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 26, 2013, 10:34pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/77 "2013-06-26T22:34:38Z")
[From _The Nation:_](http://www.thenation.com/blog/174989/supreme-courts-constitutional-hypocrisy#axzz2XMdSQ1sh) . . . > [@](#): > > \*\*The Supreme Court’s Constitutional Hypocrisy > > _Ari Berman on June 26, 2013 - 12:34 PM ET_\*\* > > In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” > > Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.” > > Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2013, 10:36pm UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/78 "2013-06-26T22:36:26Z")
Ugh. If you’re gonna do legal journalism, hire one of the thousands of unemployed young lawyers, not someone who barely understands what jurisdiction means. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [June 27, 2013, 12:53am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/79 "2013-06-27T00:53:28Z")
> [@Dr.Drake](#): > > …If I had, say, a job waiting in Philadelphia (where I understand SSM is illegal) but claimed we’d live in New Jersey… wow, what a headache. I imagine this is going to have to get sorted on a federal level sooner or later… Same-sex marriage is not legal in New Jersey; _civil unions_ are & while the state considers them equivalent to marriage it’s not clear if Windsor vs. United States requires the federal government to do so. > [@jtgain](#): > > And if SSM is a fundamental right (at least in your state) shouldn’t you get refunds from the date you were married up until the present day? If the feds are violating your rights in 2013, they were doing so in 2004. I haven’t seen any new constitutional amendments passed since then. So can \*\*sachertorte \*\*can a refund from the IRS for any “overpaid” taxes from the years Massachusetts deemed him & his partner married while the federal government did not? Ms Windsor is getting her money back. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 27, 2013, 1:09am UTC](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962/80 "2013-06-27T01:09:42Z")
As a general matter, constitutional challenges only operate retroactively if they’re to penal statutes. Plus, he and his spouse would have to file an amended return first in any event. [Previous page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=3) [Next page](https://boards.straightdope.com/t/doma-struck-down-in-a-5-4-decision/661962.md?page=5)