Are We Asking the Wrong Questions About DOMA and Proposition 8?

The Supreme Court has heard arguments regarding the Federal Defense of Marriage Act (DOMA) and California’s Proposition 8, but people on both sides of the issue will have to await the decisions, due out in June.  The cases focused on the level of scrutiny the laws ought to receive and the Constitutionality of the laws, both of which essentially define marriage to be between one man and one woman.  As a practical matter, though, the problems presented in both cases have little to do with marriage and more to do with whether domestic partnerships, civil unions, and similar arrangements are honestly a functional equivalent to marriage.

Indeed, the DOMA case before the court was related to an estate tax benefit  enjoyed by married couples: the spousal exemption.  In the case, a lesbian widow, who had a valid marriage in Canada, filed an estate tax return and owed tax.  However, if the marriage was recognized, the tax would have been essentially deferred until her own death.  A similar issue will arise in the future with the new concept of “portability” in estate taxes.  The tax was owed even though the couple resided in New York, where the marriage was recognized as valid, because the federal government defines marriage differently through DOMA.  This definition applies to all federal programs and benefits including, but not limited to, many aspects of Medicaid (Medi-Cal in California), VA benefits, including VA Aid & Attendance Non-Service Connected Disability Pension, and Social Security.

In states that allow same sex marriages, the difference between heterosexual and homosexual couples’ access to benefits can be huge.  For example, when planning to qualify for Medi-Cal long term care, which is subject to the federal law, a heterosexual couple may transfer assets from the ill spouse to the well spouse in order to fall below the assets requirements.  Similarly, some of the ill spouse’s income may be “counted” for the well spouse so that it does not need to be paid toward care.  However, if DOMA is upheld, in the homosexual married couples context, it may be much more difficult to engage in asset planning for Medi-Cal purposes property may be subject to gift tax and the Medi-Cal look-back period.  The ill spouse’s income must be almost entirely paid toward care and may result in impoverishment of the well spouse.  Although gay married couples and domestic partners in California are currently being treated the same as heterosexual couples, under California Proposition 8, the result would be different even if DOMA is unconstitutional, because Proposition 8 does not recognize a gay “marriage.”

The purpose of allowing these benefits to married couples is to evaluate and encourage the economic well being of both spouses.  As increasing numbers of heterosexual couples cohabitate without marriage and same sex couples continue to face hurdles to the recognition of their relationships, perhaps the better question is what economic units ought to be protected.  Is marriage the only arrangement where individuals may be expected to care for each other?  Or, are there arguments for allowing the counting of assets and income, or transfer of assets and income, to people other than spouses?  If so, which “economic units” should be considered and where does it end?  Irrespective of the outcome of these Supreme Court cases, it is possible that we will see significant changes to certain federal programs as a result of the legislative process in coming years.