The DOMA victory and the connection between U.S. v. Windsor and U.S. v. Loving

HERE IS WHAT MRS. LO WROTE ON JUNE 12, 2013:  "we are all on 'Windsor Watch,' awaiting the decision of the U.S. Supreme Court in U.S. v. Windsor, as well as the Proposition 8 case.  Regardless of whether the Windsor case

is decided on the grounds of States' rights, federalism, or whatever else is in the Court's toolbox, the Defense of Marriage Act needs to be overturned.  While Mrs. Lo is staunchly pro-same sex marriage, the reason the Windsor case needs to be affirmed is because the federal government simply has no jurisdiction over Family Law and the DOMA act should never have been enacted.

Today, June 12, is the 46th year anniversary of the U.S. Supreme Court's decision in Loving v. Virginia, 388 U.S. 1 (1967).  Mildred and Richard Loving, then a young married couple, were arrested in 1958 for violating the anti-miscegenation laws, which existed in 16 states at the time, including Virgina, and prohibited marriage between whites and non-whites.  The Lovings, were convicted (they had a child by this time), and their motion to vacate was denied.  The Circuit Court affirmed in part, reversed and remanded and the conviction went up on appeal to the Warren Court. 

In one of Mrs. Lo's favorite written decisions ever, the U.S. Supreme Court declared Virginia's anti-miscegenation statute, known as the 'Racial Integrity Act of 1924' as violative of the equal-protection clause and therefore unconstitutional.  This rendered the remaining 15 state anti-miscegenation statutes unconstitutional and gave all couples the freedom to marry -- unless those couples were of the same sex."This brings us to present day, and I have written extensively on the US v. Windsor case, as Edith Windsor is a New Yorker and a personal hero of mine.  Due to the DOMA, although validly married in Canada, and although her marriage to her deceased spouse is recognized now under New York State Law, she still had to pay over $360,000.00 in estate taxes because her marriage was not recognized under Federal Law."

With the decision yesterday, the U.S. Supreme Court, in a 5-4 vote struck down the Defense of Marriage Act as unconstitutional, violative of the Fifth Amendment.  In addition, by refusing to hear the Proposition 8 appeal, the U.S. Supreme Court effectively cleared the way for California to become the 13th State in the Union to recognize same sex marriage.

The connection to U.S. v. Loving is obvious.  While same sex-marriage is not illegal, the way that "miscegenation" (marriage between a white a non-white) was at the time of the Loving case, the final battleground will be set when a legally married same sex couple relocates to a State which does not recognize same sex marriage.  In the Loving case, this resulted in the arrests of the couple in the State of Virgina.

Let us explore this hypothetical:  a same sex couple legally married in, let's say, New York State, will move to a state which does not recognize same sex marriage.  The couple may seek to assert federal benefits, such as the benefits of the federal Estate tax laws, sought by Edith Windsor, and be denied.  The couple may seek state benefits, such as the right to visit their loved one in the hospital as a "spouse" and be denied.  Yet this couple was legally married in the State of New York.  If this couple then becomes a plaintiff in any myriad of possible constitutional cases to come before the U.S. Supreme Court, that will be the connection between U.S. v. Windsor and U.S. v Loving.  A same sex couple that is properly and happily married in one state, will move to another state, be denied constitutional, federal, and State rights, and bring on an action.

This will finally force the issue to be MORE than one of States' rights or federalism.  Once and for all, the U.S. Supreme Court will have to determine that broad issue of same sex marriage and the benefits that flow therefrom, at every level, to be an inalienable right.  Anything less than the unfettered right of same sex couples to marry in every state of the Union is nothing less than unconstitutional.

Adding to the list of my heroes will be:  Mildred and Richard Loving, Edith Windsor and Thea Spyer, Roberta Kaplan, and the future couple who will be bringing on this constitutional challenge.  

Juliana LoBiondo
www.LoBiondoLaw.com
Juliana@lobiondolaw.com