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.
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 what about 2011 and 2012? (That’s a serious question: I don’t know how declaring something unconstitutional affects the past.)
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.
And the idea of marrying someone because you love them is a relatively new idea.
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.
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:
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.
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.
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?
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.
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.
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.
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.
From The Nation: . . .
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.
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.
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.
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.