A couple in Adams County recently filed a lawsuit in Adams County District Court challenging Colorado’s Amendment 43 of Colorado’s state constitution, which defines marriage as only between a man and a woman and effectively bans same-sex marriage. In their lawsuit, they contend that Amendment 43 violates the equal protection and due process rights of same-sex residents of Colorado.
Amendment 43 was passed by a vote of the people in November 2006. As a result, there are essentially two avenues to remove the state law ban against same-sex marriage: litigation or the ballot box. Challenging the ban is crucial for Colorado’s same-sex couples; however, many members of the LGBT community and their allies were hoping to challenge the ban through the ballot box rather than litigation for a number of reasons. In all likelihood, this lawsuit will be removed to federal district court (the federal court enjoys jurisdiction should the State of Colorado choose to remove the case to that venue because the challenge to Amendment 43 is partially brought under and based upon federal law). Should this occur, then even if the couple is successful in federal district court, any appeal will be heard by the Tenth Circuit Court of Appeals. The states that make up the Tenth Circuit are not only Colorado but also Oklahoma, New Mexico, Kansas, Utah and Wyoming. Presently, the Tenth Circuit is considered an extremely conservative bench, a view supported by the rulings that Circuit has issued in recent years. Many believe that a loss at the Circuit court level would be not only devastating to the LGBT community and its allies in their attempt to repeal Amendment 43, it also would not be a beneficial posture in which to appeal the decision to the U.S. Supreme Court. Litigation of this type can take many years, as we witnessed with the Proposition 8 case out of California. As such, we anticipate the fight for marriage equality in Colorado will continue on both fronts – litigation and the ballot box.
Since early September, One Colorado has been hosting a Pathway to Marriage Tour throughout the State of Colorado. In doing so, they are engaging community members in discussions regarding their thoughts and ideas on the best way to approach Amendment 43 and winning marriage equality for our state. The following dates are remaining on their tour – November 6th: Colorado Springs, November 7th: Denver, November 13th: Lakewood, November 14th: Longmont, November 20th: Highlands Ranch, November 21st: Boulder. To learn more about the Tour and/or to sign up for a meeting in your community, go here.
The Department of Defense announced today that spouses of gay military members will be eligible to receive veterans benefits. This is the latest announcement regarding the effects of the Windsor decision in which Section III of DOMA, limiting the definition of marriage to be between one man and one woman for federal law purposes, was found unconstitutional.
The Department of Defense had previously announced that military benefits would be extended to same-sex spouses. However, a decision on veteran’s benefits had been delayed because those benefits were separately governed under Title 38 of the U.S. Code, which includes its own provision defining marriage between a man and a woman. The Justice Department recently advised the Obama Administration that it considered Title 38’s definition of marriage unconstitutional for the same reasons as set forth in the Windsor decision. Following that advisement, Attorney General Eric Holder announced today that President Obama has directed the Executive Branch to take steps allowing for same-sex spouses of military veterans to collect federal benefits. The announcement comes after the House Bipartisan Legal Advisory Group (BLAG) recently decided to stop defending the Title 38 provisions in pending cases. Additionally, last week, a federal district court in California held the Title 38 provisions unconstitutional on equal protection grounds.
This decision clears the way for the same-sex spouses of military veterans to receive all veteran’s benefits, which include health care, disability and survival benefits and burials in national cemeteries. The letter from the Attorney General to Congress outlining the decision can be read here.
The IRS has announced that it will recognize all legal same-sex marriages for federal tax purposes, regardless of where the couple resides. Thus, even if a same-sex couple lives in or moves to a non-recognition state, such as Colorado, if they have obtained a marriage in a recognition state, then they will be treated as married for purposes of federal tax law.
The primary highlights of today’s announcement are:
– Same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.
– Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations. Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011, and 2012.
– Employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.
To read the announcement in its entirety, go here.
Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply. The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”
As of now, Social Security claims will be based upon the law of the couple’s state of residence. Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit. The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.” To read the official release from the Social Security Administration, go here.
Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration. Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses. In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state. Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.