Hey, MinnPost — help a sister out: What with love being the law in Minnesota some of us completely forgot that any day now the U.S. Supreme Court will decide two same-sex marriage cases. Do we even need to care hereabouts anymore? Is our new marriage law in jeopardy?
— Shamefully Befuddled
No shame, Befuddled, you’re not the only one who has questions. And for as simple a concept as “married” has historically been, the details can be remarkably complicated. Just ask the fine folks over at Project 515, a group that’s advocated for years for changes to the 515 Minnesota laws that up until now discriminated against gays and lesbians.
The second same-sex marriage passed the state Senate last month they created a marriage FAQ page on their website. No sooner had they answered the obvious questions than complicated ones started landing in the group’s inbox.
For instance, if you married someone of the same sex in another state or country, it will be legal here at 12:01 a.m. Aug. 1. Your domestic partnership, on the other hand, doesn’t get upgraded automatically.
You can’t get married again to the same person here, unless the state where you were first wed repeals its marriage equality law. In that case, it’s like when your game piece moves back a square on Parcheesi: You apply for a license and move forward again.
If estranged ...
If you married someone years ago and are now estranged, you will have to find your spouse and get divorced before you can remarry. And because you can’t get divorced here until you are married here, you can’t file for dissolution until Aug. 1.
And as of right now, those of you who wake up married Aug. 1 will be married in 14 states — the dozen where gay marriage is legal and two where it’s not but its recognition is not prohibited, New Jersey and New Mexico.
Dizzy yet? Be glad you’re not a tax adviser or an HR person who handles benefits. Which form do you fill out if you currently have domestic-partner benefits but have a marriage performed elsewhere that will suddenly be legal Aug. 1? With marriage now an option for all, will your employer even continue to offer domestic-partner benefits?
How will you handle your state taxes if you live here and your spouse is a Wisconsin resident? And how will that whole long-distance thing affect your new marriage, anyhow?
In short, you have plenty of opportunities to become more befuddled before becoming less.
Wiseacre. If you’re so smart why haven’t you answered my original question? What exactly is the Supreme Court set to rule on? And are the potential ramifications here different from five weeks ago?
— Still Befuddled, But Now More Irritated Than Shamed
Boy, you are just dead-set on a simple answer, aren’t you? Good luck with that.
Blog has 'stat pack' for each term
In all seriousness, have you ever read SCOTUSblog? It’s like the sports pages, but for the constitutionally obsessed. In place of box scores, for instance, it creates a “stat pack” for each court term. Indeed, it has an entire section of court statistics.
You want to see the distribution of opinions by sitting? Graphs mapping the time between argument and opinion? The pace of opinions? Want to know whether Anthony Kennedy and Sonia Sotomayor are secret BFFs? Thank God they don’t have an app or we’d never get anything done.
But on to the merits of your question (yep, I just did that…). There’s every likelihood we’ll have firmer answers soon, as opinions remaining in the current term are likely to come down Thursday, June 20, Monday the 24th or Thursday the 27th. Both of the cases involving same-sex marriage that were argued in March have yet to be decided.
According to SCOTUS-blogger Marty Lederman, there are seven possible ways the court could rule in Hollingsworth v. Perry, the California case more colloquially known as Prop 8.
They could conclude that Prop’s backers have no legal standing to pursue the case, leaving intact appellate court decisions overturning the gay marriage ban. They could uphold Prop 8 on its merits.
If they choose to strike it down, they have three options. They could issue a California-only ruling; a ruling guaranteeing LGBT marriage in the states where it is legal; or one upholding a constitutional right to marriage for everyone.
The justices could also decide that their decision to hear the case was “improvidently granted,” again moving things back one square on the game board. Or they could send it back to a lower court for reconsideration in light of whatever they decide in the case involving the federal Defense of Marriage Act (DOMA).
The plaintiff in United States vs. Windsor is 83-year-old New Yorker Edith Windsor, who married her partner of more than 40 years, Thea Spyer, in 2007 in Canada. When Spyer died in 2009, Windsor was hit with some $600,000 in estate taxes on their two properties that a spouse in an opposite-sex marriage would not have had to pay.
If Minnesotans had voted last fall to insert a ban on LGBT marriage into the state constitution, advocates would be holding their breath for the Prop 8 decision, hoping for a sweeping ruling decreeing such amendments unconstitutional everywhere. The ruling still matters here, but won’t stop your Aug. 1 nuptials.
Federal benefits possible under one scenario
The DOMA case is another story. If the court decides that marriage is a matter best left to the states, it’s likely to extend Social Security benefits, joint tax filing status and the 1,100 other places where federal law intersects with marriage to those who are married in the dozen states where it’s legal.
Hang on — so both of these cases involve states’ rights? So we could end up with both a decision upholding California’s ban and the rights of Minnesota’s newlyweds to federal benefits?
— Befuddled and Bemused
I know, right? Imagine the stampede as San Francisco couples buy up the state’s entire supply of organic calla lilies and make the Twin Cities a wedding destination. Wilde Roast would be closed for private parties for months on end!
The DIG option
Or the justices could pull a deus ex machina and write their way around that conundrum. Or they could decide that whole “dismissed improvidently granted” thing, appealingly known as a DIG in court parlance, is mighty appealing after all and pretend the whole discussion never took place.
Speaking of writing opinions, some of the pointy-heads of our acquaintance who actually understand SCOTUSblog’s statistics say the odds are the two majority opinions will be authored one each by Chief Justice John Roberts and Justice Anthony Kennedy, who is also the court’s likely “swing vote.”
Neither has authored a major opinion yet this term, and the justices apparently like to spread this workload around. Neither has Alito, but we hear his colleagues aren’t likely to relish signing on to anything he writes.
So in answer to your original queries, Befuddled, is our new law in jeopardy? No. And do you need to care? That depends on whether your concerns extend beyond your own marital universe. And if you’ve spent this long reading in an effort to un-fuddle yourself, I suspect you do.