The issue of marriage equality for same-sex couples has been ever-present in the news these days, particularly as more and more states are extending rights to same-sex couples. Those of us who are U.S. Supreme Court watchers are anxiously awaiting the decision in the two pending cases that were argued in March: United States v. Windsor, Docket No. 12-307, and Hollingsworth v. Perry, Docket No. 12-144.

These two cases address separate and important parts of the marriage equality movement. In Windsor, the court is examining the constitutionality of the Defense of Marriage Act (DOMA) provision that prohibits the federal government from recognizing same-sex marriages in states that have sanctioned them. The facts of that case highlight the disparity between how the federal government treats lawfully married heterosexual and homosexual couples. Edie Windsor and her wife, Thea Spyer, were together for 42 years when Spyer passed away from complications of multiple sclerosis. The couple’s Canadian marriage was recognized in New York, where they lived, but Windsor was nonetheless subject to a $363,000 inheritance tax bill for the property that they jointly owned. Had they been a heterosexual couple, there would be no such tax. The district court and the U.S. Court of Appeals for the Second Circuit agreed that Section 3 of DOMA violated the Equal Protection Clause of the Constitution, and found that distinctions based on sexual orientation were entitled to a heightened level of scrutiny.

The Supreme Court questioned the standing of the various parties due to the fact that the government now agrees that DOMA is unconstitutional. After the first hour of oral argument, it almost seemed that none of the parties had any standing to be before the court. Nonetheless, it seems that the court will likely find a viable "case or controversy" since Windsor is still expected to pay the tax bill.

Assuming that happens, the court could then issue its substantive finding that Section 3 of DOMA is unconstitutional based on either an equal protection rationale (i.e., married couples are treated differently because of their sexual orientation), or on federalism grounds (i.e., the federal government shouldn’t define marriage, which is reserved for the states). There seems to be enough votes to do so, although which grounds they rely upon are unclear. Either way, this ruling would only affect couples who are legally married, and will not have an impact on places like Pennsylvania, which does not recognize same-sex marriages regardless of where they were entered. In the 12 states and Washington, D.C., that recognize same-sex marriage, this will grant those couples over 1000 federal rights that they are presently denied. In states that offer other non-marital recognitions of relationships such as civil unions (e.g., New Jersey) or domestic partnerships (e.g., Oregon), any ruling about DOMA would not extend federal rights to couples.

The question remains open about residents of non-recognition states who obtain marriage licenses in a recognition state. Here, the devil’s in the details and the specific statutes in question need to be consulted. For example, federal tax law generally relies on the residency of the filing couple so a Pennsylvania couple who marries in New York would probably not be able to file jointly. That same couple could rely on their New York marriage to get a green card for the non-citizen spouse because immigration law looks at whether the marriage was "valid where celebrated."

In the other pending case, Hollingsworth, the Supreme Court is considering the constitutionality of California’s Proposition 8, a voter initiative that revoked same-sex marriage recognition. The district and circuit courts found these efforts to be unconstitutional, finding that there was no rational basis for denying marriage to same-sex couples. Like the Windsor case, there is a significant standing question since California refused to defend the proposition, and instead, its proponents "stood in their shoes." A majority of the justices questioned whether this matter was properly before them. While there was precedent for the proponents to defend its constitutionality under state law, federal precedence does not allow for such standing. Accordingly, while the case could theoretically determine whether there is a fundamental right to same-sex marriage, it is unlikely that the court will rule on the substantive issue. The court is generally reluctant to be ahead of social issues, and instead likes to allow the states to serve as "laboratories" first. All this suggests that the court will dismiss the Hollingsworth case on procedural grounds (either for lack of standing or as improvidently granted). This would reinstate the lower court ruling and allow same-sex marriages in California.

Practically speaking, there is an important legal issue to remember when Pennsylvania couples marry or civilly unite in nearby states (e.g., Delaware or New Jersey). While it’s clear that these couples have no legal recognition of their relationship in Pennsylvania, they face a difficult catch-22 should they terminate their relationship. Since Pennsylvania does not recognize that marriage, the couple has no ability to seek a divorce, or receive any of the rights associated therewith. Instead, they find themselves "wedlocked" in a relationship that they cannot dissolve. In states like New Jersey and New York, dissolutions can only be sought by residents (for over a year). Delaware’s law includes a creative solution, whereby jurisdiction is retained over those unions that were solemnized there but cannot be dissolved where the couple resides.

As practitioners, we need to be careful when advising couples as neighboring states become more welcoming to same-sex couples. If indeed DOMA is overturned, many clients will flock to recognition states to get some federal benefits, unaware of potential "wedlocking" issues. To combat this zeal, we can assist clients in drafting documents for the future. Though they are encouraged for any couple, estate planning documents (i.e., wills, powers of attorney) are even more important for same-sex couples. Additionally, since same-sex couples are not afforded the marital exemption from state taxes, we recommend that couples take out life insurance policies in anticipation of that tax hit. Finally, there are ways to file pre-emptive claims with the IRS to preserve claims should DOMA be repealed.

There is a great deal of activity happening around marriage equality in the courts and legislature, and the incremental progress will surely continue in the future. That said, we want to ensure that zealous clients and advocates do not dive into these murky waters without fully understanding the potential pitfalls of constitutional challenges to the myriad laws involving marital status. •

David M. Rosenblum is the legal director at Mazzoni Center, a nonprofit health and wellness center serving the needs of the lesbian, gay, bisexual and transgender community in Philadelphia. He supervises Mazzoni’s legal services department, which includes an active clinic staffed by law students, and serves as an adjunct clinical professor at Temple University’s Beasley School of Law.