This summer, in United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013), the U.S. Supreme Court found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. From now on, the federal government cannot treat same-sex marriages differently from heterosexual marriages. The states still may. But for how long?
Imagine this scenario: Two newly married—and even newer—residents to Georgia, show up at a Department of Driver Services customer service center to apply for driver's licenses, using their new married surnames. The first, a young lady named Alice, presents a marriage license from Vermont announcing her matrimony to someone, first name Gunter (or Wolf or Spartacus). The second person, Robert, presents a marriage license from Vermont announcing his nuptials to someone named Gunter (or Wolf or Spartacus). Besides the names, nothing indicates gender on either marriage certificate.
If the DDS employee handling the paperwork flags the possibly same-sex license—but not the other—for scrutiny, accepting one and denying the other, might Georgia be the site of the next challenge to the same- sex marriage prohibitions prevalent in many states? Unless every such marriage certificate presented is scrutinized with the same care, how does Georgia's "Recognition of Marriage" Amendment remain immune from an equal protection challenge?
How did we get where we are now?
Although he now favors same-sex marriage rights, then-U.S. Representative Bob Barr in 1996 introduced DOMA and Congress passed it.1 In 2004, Georgia voters passed a Recognition of Marriage Amendment banning same-sex marriage. The margin was more than 3-to-1 opposing same-sex marriage.
Among those who voted for the amendment, 88 percent identified as Republican and 64 percent as Democratic voters. In no county did the amendment fail to pass. In many counties it garnered more than 90 percent of the vote. Only in Clarke County, home to Athens and the University of Georgia, did the amendment come close to not passing, squeaking by with 52 percent of the vote.2
The dust may not settle from Windsor before the next challenge to a same-sex marriage ban is attempted. As Justice Anthony M. Kennedy wrote in Windsor, DOMA affected the implementation of "over 1,000 federal statutes and a myriad of federal regulations" bestowing rights, benefits and protections based on marital status.
More than 200 of those statutes and regulations apply to the IRS and Treasury Department. Now, the IRS will look to where a couple celebrated their nuptials, not where they presently live, to determine marital status. Thus, a same-sex couple legally wedded in Vermont will be considered married by the IRS even after moving to Georgia.
However, no matter the gender of either partner, no matter the state where formalized, those united in civil unions and domestic partnerships are not considered spouses for federal tax purposes.
In formulating its implementation of Windsor, the IRS points out that "[a] rule under which a couple's marital status could change simply by moving from one state to another would be prohibitively difficult and costly for the Service to administer, and many tax payers to apply."3
But with more than 30 states still banning same-sex unions outright,4 with many new, post-Windsor federal rules applying retroactively, and with so much convoluted interplay between federal and state laws and regulations, will the difficulties be resolved—and costs reduced—so easily?
In Georgia, it's just business
The Recognition of Marriage Amendment says Georgia "shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state."
Apparently, no one has told Georgia businesses.
Aflac provides insurance benefits to 26 same-sex couples, 15 of whom live in the company's home base of Columbus. States the company, "Aflac has historically provided benefits to anyone with a legal marriage certificate. In keeping with our commitment to embrace and promote diversity, our policy to offer the same benefits to all legally married employees and to domestic partners who have registered their relationships with any state, regardless of orientation, is included in our formal company benefits guide."5
Other Georgia companies extending benefits to its same-sex couples, either married, in a domestic partnership or a civil union, include Coca-Cola, Atlanta Gas Light, Delta Air Lines and the former BellSouth units of AT&T. Georgia governmental entities extending the same benefits include Fulton County, the city of Atlanta, DeKalb County and the Grady Health System.6
By the numbers
So with federal and state law in opposition, with businesses and cities doing their own thing, who in Georgia is affected?
While difficulties inherent in data collection and classification make it impossible to be exact, it's estimated that there are 9 million to 11 million lesbian, gay, bisexual and transgendered (LGBT) people in the United States. Georgia has between the 5th to 9th largest LGBT population among the states.7
There were around 650,000 same-sex households in the nation in 2010. Of those, more than 500,000 were unmarried couples.8 Gary Gates, a demographer at the Williams Institute on Sexual Orientation Law at UCLA, estimates 65,000 adopted children live in homes headed by a gay parent, or roughly 4 percent of the country's adopted population.9
Comparing Williams Institute data on same sex families with that of a recent Gallup poll on sexual orientation self-identification,10 it appears that same-sex couples are more likely to raise children when they live in less urban, more socially conservative environments. North Dakota and Mississippi, states that do not recognize same-sex marriage, have higher percentages of same-sex couples raising families than Hawaii and the District of Columbia, which do allow such unions (Hawaii recognizes civil unions as the equivalent of same-sex marriages, which it bans.)
In Georgia, 19.6 percent of the state's same-sex couples are raising children, placing it 18th among the nation.11 Without delving too deeply into this curious social phenomenon, in Georgia the rural-urban dichotomy holds. For example, 46 percent of the Hinesville-Fort Stewart area's same-sex couples raise children, compared with only 17 percent of the same-sex couples in the Atlanta-Sandy Springs-Marietta area.
Financial and estate planning for same-sex families in Georgia
Whether married in another state or in a prohibited ceremony in Georgia, same-sex couples are presented with unique challenges in financial and estate planning. A will or trust can ensure many assets do pass as intended between same-sex partners. Many spousal protections are unavailable without well-drafted documents.
Georgia's law of intestate inheritance recognizes a spouse with no children or other lineal descendants as the sole heir of the decedent's estate. It provides for apportionment between the spouse and lineal descendants, if any. O.C.G.A. § 53-2-1(c)(1). However, because Georgia does not recognize any form of same-sex union, without a will naming them as beneficiary, a court is powerless to award the surviving partner of a same-sex marriage an inheritance as a spouse.
Even with well-drafted documents, some benefits cannot pass from one same-sex partner to another. For example, year's support elections, a valuable tool for protection from the creditors of the deceased, are available to a surviving spouse, as Georgia defines them. However, like the DDS scenario above, some marriages may be scrutinized while others pass without a second glance. Proof of marriage is not normally requested in year's support petitions unless contested. It isn't hard to imagine Robert getting flagged spontaneously for Gunter's estate while Alice's claim for her same named spouse's estate goes unnoticed. Opportunities for challenge abound.???
Health care decisions
Also of special importance to a same-sex couple is having their preferred Health Care Agent named in a properly drafted Advanced Directive for Health Care. Same-sex couples in Georgia cannot expect their marriage to revoke a previous designation of a Health Care Agent as it would for a straight couple. Why might this be a problem?
Suppose before marrying Gunter, Robert named his sister Denise as his Health Care Agent to make medical decisions for him should he be incapacitated. Now that Robert has married Gunter—even if he intended Gunter to be his new Health Care Agent—without the proper legal documents, Georgia says Denise remains. O.C.G.A. § 31-32-6 (b).
What if Robert is involved in a serious accident and ends up in a vegetative state? Denise wants to "pull the plug" on life support per the Advanced Directive. But Gunter, who knows Robert's wishes, wants everything done to save Robert—the man Gunter considers his husband, even if Georgia does not.
Or suppose Gunter and Robert married and, after moving to Georgia, executed Advanced Directives naming them as one another's health care agents. Presumably, the properly executed directives will be recognized by Georgia. But the two then divorce. Perhaps they do so in Wyoming, which, while not permitting the performance of gay marriages, does recognize and permit gay divorces.12 In Georgia, a heterosexual couple's divorce also ends their advanced directives. But Georgia courts cannot grant or recognize a gay couple's divorce. Without new directives, Gunter and Robert still are one another's health care agents. O.C.G.A. § 31-32-6(b).
What about Jenny and Penny, who consider themselves married and have properly made each other their Health Care Agents under their respective advanced directives? Now, either woman should be able to obtain one another's health records while living. These records include, but are not limited to, "evaluations, diagnoses, prognoses, laboratory reports, X-rays, [and] prescriptions[.]" O.C.G.A. § 31-33-1(3). However, only if both Jenny and Penny have made one another the executors of their respective estates will one be able to obtain the same information upon the other's death. Short of that, the surviving spouse will need to be made administrator of the deceased's estate. That may prove difficult to do, depending on upset family members and where the estate will be probated. Were they a heterosexual couple, if no person is named executor or appointed administrator, the spouse precedes the deceased's surviving children and parents in order of who will receive medical records. O.C.G.A. § 31-33-2(2)(a)-(d).
While becoming a guardian for another adult is not guaranteed even between spouses, same-sex couples may face greater difficulties than a similarly situated heterosexual couple.
Imagine Jenny and Penny now in a situation where Jenny seeks a guardianship over Penny. Prior to the need arising, Penny did not have in place any documents nominating Jenny as her guardian. Meanwhile, Penny's parents do not have amicable relations with Jenny, and Penny's mother also is seeking guardianship. While the court "shall appoint as guardian that individual who will best serve the interest of the adult," there also exists a statutory preference for the spouse. O.C.G.A. § 24-9-3(a). But because Jenny and Penny are not spouses in Georgia, Penny's mother outranks Jenny on the preferential list. O.C.G.A. § 24-9-3(b).
But what if Jenny comes to court armed with an advanced directive naming her as Penny's preferred guardian? While it's a stronger situation than that posited above, still there are no guarantees. What if the court does not look favorably upon the relationship between Jenny and Penny? Now, the court "may disregard" Penny's preference "only upon good cause shown." The burden will be on Penny's mother to make the case against Jenny at a guardianship hearing. So, presumably, having an advanced directive in place puts a same-sex couple on equal footing with a straight couple. Still, as the court has some latitude in these matters, no doubt a same-sex partner seeking guardianship of a spouse wouldn't want to be in front of a judge who looks askance at their unconstitutional relationship.
Why not full faith and credit?
Georgia voters overwhelmingly passed the Recognition of Marriage Amendment just nine years ago. Is there any reason to suspect the amendment could fall to a constitutional challenge? Article IV, Section 1 of the U.S. Constitution reads, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
Section 2 of DOMA, still the law of the land, reads, ''No State … shall be required to give effect to any public act, record, or judicial proceeding of any other State …respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State … or a right or claim arising from such relationship.''13 By tracking the second sentence of the "full faith and credit" clause in DOMA, Congress believes it has the power, and did in fact effectively use it, to relieve the states of any requirement to recognize one another's marriages.
Long before Windsor, the Supreme Court recognized "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce … [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U.S. 562, 575 (1906).
The states' free reign to do as they will with respect to marriage is not sacrosanct. For instance, in Loving v. Virginia, a ban on interracial marriage was overturned.14 Nevertheless, high regard for the power of the states to regulate the institution is professed.
Indeed, in Windsor, Justice Kennedy critiqued DOMA's "depart[ure] from [the] history and tradition of reliance on state law to define marriage." To that, Chief Justice John Roberts Jr., in his dissent, reminded the majority to remember their concerns for state power, diversity and sovereignty as regards marriage when the inevitable challenge to DOMA's Section 2 reaches them.
In conclusion: More confusion?
Many more issues than the few addressed here confront same-sex couples and their families, especially those living in states where their relationships are not recognized. Still, the Pentagon is now extending benefits to same-sex military spouses.15 So, to paraphrase former Secretary of Defense Donald Rumsfeld, same-sex couples need to know they face known knowns, known unknowns, and likely a lot more unknown unknowns.
But perhaps soon we will see a modicum of clarity brought to the situation with a new U.S. Supreme Court case. And who knows? Maybe a seemingly innocuous name change request at a DDS Customer Service Center will put Georgia in the national spotlight and give the state a lead role in this continuing constitutional drama.
7 www.iclega.org/fiduciary/pdf/Same Sex Different Day.pdf
12 Christiansen v. Christiansen, 253 P. 3d 153, 2011 Wyo. 90 (2011).
13 Public Law 104–199, 110 Stat. 2419
14 Loving v. Virginia, 388 U.S. 1 (1967)