Federal Reaction to Gay Marriages
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Federal Reaction
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The Defense of Marriage Act (DOMA), 1 U.S.C. 7, provides that ?...(i)n determining the meaning of any Act of Congress...the word ?spouse? refers only to a person of the opposite sex who is a husband or a wife.? Because of the Defense of Marriage Act, no marital privilege or immunity or statutory preference will be applied to the same sex married couples without challenge. A same sex married spouse with a valid state marriage license will challenge the federal statute on constitutional grounds in the near future, and the case will wend its way to the unpredictable United States Supreme Court.
While that DOMA challenge case is pending, the opponents of gay marriage will try to obtain approval of an amendment state constitutions, and to the United States Constitution, to prohibit the states from granting a marriage license, and the status of spouses, to same-sex couples. State and federal officials will try to create a civil union compromise, as now exists in Vermont, to remove the contentious marriage issue, with its religious connotations, from their plates. The end result is not predictable at this time. Optimists predict an improvement in the legal status of same-sex couples, and pessimists fear some overwhelming backwash of oppression.
Decisions and the Lawyer?s Role
A decision to marry is based on more than legal concerns, but marriage is a ?civil contract? (ORS 106.010) and carries with it many legal benefits and burdens. Any pending legal matter -- personal injury, workers compensation, pension, domestic relations, probate ? might be affected by the marriage of a party.
An estate planning lawyer can provide advice on the effect of same sex marriage on estate planning documents.
Many state laws giving a spouse an automatic preference or benefit do not depend on federal law, and will not be delayed by a DOMA statutory challenge. The state laws will have immediate application to validly married same-sex spouses. The state agencies and courts have not had to think this through before now, so these issues will be worked out step by step by brave spouses stepping forward to claim rights or preferences.
For lawyers, a quick review of the benefits and burdens of marriage and the impact of marriage on estate planning documents can help clients plan for the legal consequences of marriage.
Federal Reaction
.
The Defense of Marriage Act (DOMA), 1 U.S.C. 7, provides that ?...(i)n determining the meaning of any Act of Congress...the word ?spouse? refers only to a person of the opposite sex who is a husband or a wife.? Because of the Defense of Marriage Act, no marital privilege or immunity or statutory preference will be applied to the same sex married couples without challenge. A same sex married spouse with a valid state marriage license will challenge the federal statute on constitutional grounds in the near future, and the case will wend its way to the unpredictable United States Supreme Court.
While that DOMA challenge case is pending, the opponents of gay marriage will try to obtain approval of an amendment state constitutions, and to the United States Constitution, to prohibit the states from granting a marriage license, and the status of spouses, to same-sex couples. State and federal officials will try to create a civil union compromise, as now exists in Vermont, to remove the contentious marriage issue, with its religious connotations, from their plates. The end result is not predictable at this time. Optimists predict an improvement in the legal status of same-sex couples, and pessimists fear some overwhelming backwash of oppression.
Decisions and the Lawyer?s Role
A decision to marry is based on more than legal concerns, but marriage is a ?civil contract? (ORS 106.010) and carries with it many legal benefits and burdens. Any pending legal matter -- personal injury, workers compensation, pension, domestic relations, probate ? might be affected by the marriage of a party.
An estate planning lawyer can provide advice on the effect of same sex marriage on estate planning documents.
Many state laws giving a spouse an automatic preference or benefit do not depend on federal law, and will not be delayed by a DOMA statutory challenge. The state laws will have immediate application to validly married same-sex spouses. The state agencies and courts have not had to think this through before now, so these issues will be worked out step by step by brave spouses stepping forward to claim rights or preferences.
For lawyers, a quick review of the benefits and burdens of marriage and the impact of marriage on estate planning documents can help clients plan for the legal consequences of marriage.
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