Edith Windsor was in a relationship for a long time, and was married in Canada in 2009. She is 83 and lived in New York. When her spouse died the federal Government levied a tax of $363,000/- that would not be ordinarily levied on a widow. Why? Because Edith was a lesbian, and the marriage was same sex.
The IRS looks to a State law in determining whether the person is married. New York recognized gay marriages in 2011. But the couple was married in 2009. Under the Federal Law Defense of Marriage Act (DOMA) , the word spouse is defined as a person of the opposite sex. The second circuit yesterday became the second federal court to rule that DOMA is unconstitutional. It takes away the rights of same sex couples that are inherent in heterosexual couples.
Although this case is a tax case, it has humongous impact on Immigration. Many long term same sex couples cannot get the immigration benefits from being married to their long time spouse. They are actually penalized more heavily than even Edith Windsor. Many times they are forced to live illegally, with no immigration benefits, but simply because of the love for their partners. If that partner dies, they cannot gain anything monetarily.
Same sex marriage is legal in 6 states and the District of Columbia. 5 more States allow Civil union. 4 States are voting on the issue in November. Hopefully the tides will turn and we can actually become a land that guarantees “liberty and Justice for all.”