Gay Marriage Rulings May Raise New Questions for Couples

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The Supreme Court will announce its ruling on two same-sex marriage cases this month, potentially changing the legal landscape for thousands of gay couples. But depending on how the Court decides, the rulings could raise more questions than they answer.

This is particularly true if the justices decide to rule narrowly on Hollingsworth v. Perry, the case over California's Proposition 8, while striking down the Defense of Marriage Act in the other court case before them, U.S. v. Windsor. The justices could limit their ruling on gay marriage to California and just a few states while deciding that the federal government has to recognize same-sex marriages, which it currently does not. If that happens, the day-to-day headaches of being a same-sex couple in America may not decline by much.

"I think the biggest misconception people have is that, 'Okay, this week or next week, we'll have the answer,'" said Anthony Infanti, a professor at the University of Pittsburgh School of Law who specializes in tax issues for gay and lesbian couples. "We'll have an answer." [5 Myths About Gay People Debunked]

Making the case: Proposition 8

In March, the Court heard oral arguments in both Hollingsworth v. Perry and U.S. v. Windsor. The first case centers on Proposition 8, a 2008 California voter initiative that revoked the right of same-sex marriage that had been given by a judge months earlier. The Ninth Circuit Court of Appeals ruled Proposition 8 unconstitutional, but same-sex marriages have been on hold in California pending the current Supreme Court appeal.

The Supreme Court has many options in ruling on the Prop. 8 issue. The justices could decide that the defenders of the proposition have no legal standing to bring the case, which would effectively allow same-sex marriage in California but not affect the rest of the country. They could make a narrow ruling on the basis that California had same-sex marriage and then took it away unconstitutionally, which again would result in legal same-sex marriage in California only.

Alternatively, the court could rule that California, by allowing same-sex couples civil unions but not marriage, is upholding an unconstitutional "separate but equal" situation. Striking down Prop. 8 on these grounds would affect a few other states that disallow same-sex marriage but do allow domestic partnerships or civil unions, likely converting those unions to marriages, Infanti said.

Finally — and most unlikely, according to most Court-watchers  — the justices could tackle whether denying same-sex couples marriage rights with Proposition 8 violates the equal protection clause of the Constitution, which could result in nationwide legalization.

Federal issue: DOMA

The second case before the court, U.S. v. Windsor, is a challenge to the Defense of Marriage Act (DOMA), a law that prevents the federal government from recognizing same-sex marriages declared valid by individual states.

Again, the justices could decide the DOMA case on whether the law's defenders have legal standing, effectively upholding the status quo. If they do decide the case on its merits, they can either uphold the law or strike it down. That's where things get interesting, according to Infanti.

Assuming the Court does not make a sweeping ruling that legalizes same-sex marriage with Proposition 8, striking down DOMA would not necessarily clear up legal hassles for gay couples, Infanti said. Take taxes: Right now, couples legally wed in their home state typically have to fill out joint tax forms for state purposes and single tax forms for federal purposes — a process that costs extra time and money. [I Don't: 5 Myths About Marriage Busted]

If DOMA is repealed, couples in states that recognize same-sex marriage will have it easier. They'll be able to file joint tax returns for both state and federal purposes. But couples in states where same-sex marriage isn't recognized will still have headaches. They may be able to file jointly to the federal government, but they'll still have to fill out single tax forms for their home state.

"You're just moving around the pieces," Infanti said. "Instead of creating a hassle for people in states that recognize the relationship, you're now creating a hassle for people in states that don't recognize the relationship."

Striking down DOMA would also do little to help gay couples navigate the patchwork of state laws, Infanti said. It's not clear how the federal government would deal with married gay couples who move to a state that doesn't recognize gay marriage, nor what would happen to couples who go out of state to get hitched.

"If you're married and you're a same-sex couple, you can't just rest assured that state law is going to protect you, because you're not always going to be in your state," Infanti said. In many cases, he said, married gay couples will still have to draw up legal paperwork, such as powers of attorney, just in case something happens to one of them while out of their home state.

Public opinion

How the Supreme Court decisions will resonate with public opinion remains to be seen, as well. Already, pro- and anti-Proposition 8 forces are preparing for yet another ballot initiative on the issue in 2014, depending on how the Court decides, according to Reuters.

Meanwhile, a just-released survey by the Pew Research Center finds that 72 percent of Americans believe that legalization of same-sex marriage is "inevitable." Among gay marriage supporters, that number is 85 percent, but even the majority of opponents (59 percent), see the outcome as a given.

Some advocates have raised concerns that a broad Court decision legalizing same-sex marriage could engender a backlash, leading to a situation like the abortion debate. In 1973, the Court's decision on Roe v. Wade allowed for the right to abortion before fetal viability, but the issue is still a hot-button one today, with many states increasing restrictions.

Nevertheless, at least one study suggests that backlash may not be a problem, should the Court decide on legalizing same-sex marriage nationwide. In two experiments, participants who read about state and federal court rulings allowing same-sex marriage actually felt more positively about gay marriage than they did before reading about the cases. The study, which has not yet been published in a peer-reviewed journal, appears on the political science blog The Monkey Cage.

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