This morning, people in coffee houses and churches across the land will no doubt be talking about the Supreme Court's 5-4 ruling in Obergefell v. Hodges, making same sex marriages legal in all states.
Procedurally, the case got its start when a same sex couple from Ohio filed a lawsuit in United States District Court challenging Ohio's position that it would not recognize a same sex marriage which had been legally performed in Maryland. The local Registrar wanted to acknowledge the marriage based on the Constitution's "Full Faith and Credit Clause" which requires states to recognize the "public acts, records, and judicial proceedings of every other state." The state's Attorney General said no. As the case made its way through the court system, other couples followed suit - literally - by filing suit.
The cases became consolidated with other similar cases in Ohio before finding their way to the Sixth Circuit Court which ruled that Ohio ban on same sex marriage did not violate the U.S. Constitution and that there was no legal obligation for Ohio to recognize marriages in other states.
That case was appealed to the Supreme Court which agreed to hear the matter together with three other cases. Despite the consolidation, the case was known as Obergefell at the nation's highest court.
The result? This week, the Supreme Court held that the Fourteenth Amendment "requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State."
Justice Kennedy wrote the opinion for the majority with Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joining. In an unusual move, each dissenting Justice (Chief Justice Roberts together with Justices Scalia, Thomas and Alito) filed a separate opinion. You can read the entire Supreme Court opinion, including the dissents, here (downloads as a pdf).
In his dissent, Chief Justice Roberts stressed that only a handful of states had recognized same sex marriages with laws made in voting booths and legislatures. It wasn't political process that made same sex legal but court rulings, a move that he found concerning. Justice Scalia agreed, writing that the case was a "threat to American democracy."
Justice Kennedy, writing for the majority, emphasized that rights under the Constitution weren't restricted to those granted in the voting booth. He clarified that "[t]he issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry." Justice Kennedy noted that that court action is an appropriate forum to answer the question because "individuals who are harmed need not await legislative action before asserting a fundamental right."
Calling marriage "a keystone of our social order," the Supreme Court found that states have used marital status as the basis for other government rights, benefits and responsibilities - including tax and inheritance and property rights. Tax, of course, was the driving factor in one of two same sex marriage cases United States v. Windsor and Hollingsworth v. Perry (both opinions download as pdf), decided at the Supreme Court just two years ago. In Windsor, the Supreme Court (again in a 5-4 decision), declared that the language in the federal Defense of Marriage Act (DOMA) defining "marriage" as a union between a man and a woman was unconstitutional. The result in that case was that same sex marriages which were made legal in individual states were legal for federal purposes. Windsor did not require states without same sex marriages to recognize same sex marriages. Perry was decided on procedural grounds and invalidated California's Proposition 8, a state law which banned same sex marriages.
Perry didn't have a significant impact on the country: the opinion was pretty narrowly tailored to the law in California. Windsor did, however, make a significant impact in the tax world. That's because, for tax purposes, your filing status for state purposes determines your filing status for federal purposes. DOMA tried to change that by enforcing a federal definition of marriage. However, Windsor clarified that state law trumped the federal law in that case: after Windsor, your filing status in your state was your filing status for federal purposes, even for same sex marriages. Or, put another way, with Windsor, if you lived in a state where same sex marriage was legal, you were married. If you lived in a state that doesn’t recognize same-sex marriage, your filing status for federal tax purposes did not change.
Obergefell doesn't change the analysis in Windsor. Obergefell does advance the analysis by clarifying that states may not have differing standards of marriage by gender. In other words, as of today, individual states may not ban same sex marriages and they may not fail to recognize same sex marriages in other states. That makes a huge difference for same sex couples - especially at tax time. Acknowledging this, Des Hudson, a Philadelphia area tax preparer, remarked: Now I don't have to ask what state were you married in for tax purposes.
That doesn't mean that all tax questions are settled. And that brings us back to those discussions folks will be having in coffeehouses and churches across the country today - especially those in churches. Clearly, not all religious groups will - or have - embraced Obergefell. Concerns about what it means for churches and other religious organizations across the country were evident.
Archbishop Joseph E. Kurtz, president of the U.S. Conference of Catholic Bishops (USCCB), called the ruling "a tragic error that harms the common good and most vulnerable among us, especially children." Archbishop Kurtz clarified that, despite the Obergefell ruling, "the nature of the human person and marriage remains unchanged and unchangeable."
The Church of Jesus Christ of Latter-day Saints declared that "The Court’s decision does not alter the Lord’s doctrine that marriage is a union between a man and a woman ordained by God. While showing respect for those who think differently, the Church will continue to teach and promote marriage between a man and a woman as a central part of our doctrine and practice."
Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, declared that the finding "will have wide-ranging and perilous consequences for the stability of families and for freedom of religion."
Of course, no matter how the decision was to be decided, it had been anticipated that there would be both support and dissent. Even the Supreme Court justices didn't agree with each other: the 5-4 split makes that clear.
Justice Kennedy addressed this idea in his opinion, reminding the majority that religious groups have a constitutionally protected right to disagree with the decision and to advocate their own positions:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
Clearly, if you don't like the ruling, you're allowed to say so. And you can do so as loudly as you want.
Where this gets tricky, however, is as the ruling - and the right to dissent - applies to tax exempt groups, including many of those churches who may be preaching in opposition to the ruling today.
Clearly, religious organizations and other tax exempt organizations have the right to disagree with the ruling. However, the normal rules for section 501(c)(3) and other tax exempt organizations still apply. Those rules, the ones that relate to political advocacy, voter education issues and politicking, haven't changed. And yes, they still remain controversial (think Citizens United and the resulting IRS scandal).
The line between advocacy and discrimination can be a fuzzy one for some and that has many folks concerned. It also has some on the Hill thinking. Just before the ruling, Rep. Raul Labrador (R-ID) and Senator Mike Lee (R-UT) re-introduced the First Amendment Defense Act, or FADA.
The purpose of the bill is to protect for profit businesses - and tax exempt organizations - who refuse to provide services, including performing marriage ceremonies, to same sex couples. Specifically, the bill would prohibit the federal government from attempting to "alter in any way the Federal tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, or revoke an exemption from taxation under section 501(a) of the Internal Revenue Code of 1986" or to "disallow a deduction for Federal tax purposes of any charitable contribution made to or by such person." So far, those signing on to support the bill in the Senate include Sen. David Vitter (R-LA), Sen. Ted Cruz (R-TX), Sen. Mike Crapo (R-ID), Sen. Marco Rubio (R-FL), Sen. Jim Inhofe (R-OK), Sen. Pat Roberts (R-KS), Sen. Mike Enzi (R-WY), Sen. David Perdue (R-GA), Sen. Jeff Sessions (R-AL), Sen. Steve Daines (R-MT), Sen. Lindsey Graham (R-SC), Sen. Orrin Hatch (R-UT), Sen. Tom Cotton (R-AR), Sen. Jim Risch (R-ID), Sen. Bill Cassidy (R-LA), Sen. Mike Rounds (R-SD), Sen. Roger Wicker (R-MS), and Sen. Ben Sasse (R-NE).
Language in the bill is similar to that in religious freedom bills popping up across the country. You may recall that Indiana’s controversial Religious Freedom Restoration Act (RFRA), signed into law by Gov. Mike Pence earlier this year, attracted national attention when opponents of the bill decried it as advancing discrimination. Proponents of the bill, however, rallied to the support of business owners, including owners of a small pizza parlor who suffered significant backlash after saying they would not prepare food for a same sex wedding.
Obergefell didn't strike down those existing state religious freedom laws. And Obergefell won't change those opinions.
What the reintroduction of the First Amendment Defense Act - and discussions we'll certainly be having this week - makes clear is that while the law of the land is settled regarding same sex marriage, it's not yet settled on how we as a country will regard any disagreements or dissents. It's also not quite clear where we are comfortable delineating the right to be heard and the right to do so in the business world - especially for tax exempt businesses and organizations.
As opponents of same sex marriage regroup and consider their next course of action, including support of the First Amendment Defense Act as well as potential lawsuits and litigation, it's apparent that the broader issue of what it means to support or oppose same sex marriage is far from settled. I wouldn't be surprised to see this issue - laden with First Amendment and tax considerations - again land at the steps of the very same Supreme Court. Stay tuned.
