Anticipation is building among marriage equality supporters (and opponents), as decisions from the U.S. Supreme Court on two major same-sex marriage related cases are set to be released either this week or next. As we have previously discussed, one case relates to the Defense of Marriage Act (DOMA) which has direct implications on the rights (and estate planning) of all same-sex couples in New York.
DOMA prohibits even same-sex couples who are legally married in states that allow it (like New York) access to all federal benefits pertaining to marriage. This includes well over a thousand distinct items, like Social Security, preferred tax breaks, immigration privileges, and more.
Many are hoping that the Court strikes down the portion of DOMA which denies those benefits, finally placing all married same-sex couples on the same footing as their opposite sex counterparts. The court may release its ruling on that case, Windsor v. United States, as soon as this Thursday.
Yet, as a recent Towleroad article on the pending decisions explain, depending on the specifics of the ruling, they may lead to even more complications for same-sex couples nationwide. That is because it is unclear exactly how the removal of DOMA will impact all of the intermediary statuses which exists in some states or the requirement for individual states to recognize actions of other states. Some states have civil unions (or domestic partnerships) which are identical to marriage except in name. Others have unions that are substantially similar (though not including all the rights of marriage).
Therefore, there is confusion over how the federal government will treat these interim unions if DOMA is overturned. Federal law is riddled with contradictory terminology, sometimes referring directly to "'marriage" and sometimes not. Many predict that the legal landscape following these ruling will actually be even less clear than before.
All of this may impact New Yorkers, as it remains unclear how the law will treat couples who marry here (and conduct estate planning here) and then move elsewhere--particularly to states that do not allow same-sex couples to marry. There is a chance that in the second case (Hollingsworth v. Perry), the high court could issue a "game over" ruling that effectively legalizes gay marriage nationwide. However, most observers believe that sort of ruling is highly unlikely. In other words, while these pending decisions will undoubtedly be critical pieces in the fight for equal rights, they are unlikely to resolve the matter indefinitely.