Down With DOMA By Traci L. Schrader

Down With DOMA

Edith “Edie” Windsor and Thea Spyer

Down With DOMA By Traci L. Schrader

The U.S. Supreme Court announced recently that for the first time since its conception, it will tackle the heightened dispute of same-sex marriage. Challenging most expectations, the justices said they will examine the case of United States v. Windsor, an appellate case pending in the United States Supreme Court in which the United States Court of Appeals for the Second Circuit ruled the U.S. District Court for the Southern District of New York’s decision in Windsor v. United States, which found Section 3 of the Defense of Marriage Act unconstitutional, as it defines the term marriage as “a legal union between one man and one woman as husband and wife” and spouse as “a person of the opposite sex who is a husband or a wife”. This case presents the likely hood that the court could decide all the basic issues surrounding same-sex marriage simultaneously.

As anticipated, the court said it will rule on the constitutionality of the Defense of Marriage Act, a.k.a. DOMA. The case examines whether the federal government can deny federal benefits to legally married same-sex couples — benefits that are automatically granted to heterosexual couples, as well as the question of whether or not any governmental body can deem the marriage of any two individuals as unconstitutional. Currently, there are over one thousand federal laws and statutes, in which qualification is based on marital status. Although a few states now allow gay and lesbian couples to marry, the majority of states still don’t recognize marriages between partners of the same sex, which denies married same-sex couples as well as domestic partners the exact same rights and benefits afforded traditionally married couples.

Married heterosexual couples receive significant advantages from Social Security benefit programs that do not apply to same-sex couples. For some gay and lesbian partners, the denial of these benefits can translate to poverty if their qualified spouse passes away. A surviving spouse of a an entitled employee, (Social Security retirement or disability), benefits may be entitled to receive retirement benefits based on the deceased spouse’s earning declaration and for retired married couples, a person whose calculated Social Security benefit is lesser than that of his spouse may take half of his spouse’s higher benefit, rather than receive the amount accrued from his own earnings. Same-sex couples are not entitled to file joint tax returns and subsequently, lose thousands of dollars. Also, same-sex couples are not allowed to create “family partnerships, a process which allows couples to divide business income between qualified family members, which again, results in substantial tax savings. Another way that heterosexual, married couples receive favor over same-sex married couples and domestically-partnered couples relates to property taxes. Regarding estate and gift tax exemption, federal law excuses a certain amount of money from federal estate taxes and federal gift taxes for all property left to a surviving spouse (presently the exemption is $3.5 million). The surviving spouse does not pay taxes on any sum she receives from her deceased spouse that’s under the exemption limit. Married couples can combine their personal estate tax exemptions. This means that the second spouse to die can leave property worth up to $10 million free from federal estate tax. Gay or lesbian couples do not get receive this benefit of portability so that the later spouse to die can leave only $5 million tax-free. Heterosexual married couples can create life estate trusts which deliver distinct tax advantages upon the death of one spouse, which also yields tax advantages to the surviving spouse of the heterosexual, married couple. Other incredibly import benefits not allowed same-sex married couples and members of domestic partners include most veteran’s survivor benefits and federally funded military and civilian employee spousal benefits although this does seem to be on the verge of changing.

The case that seems to be the eye of the hurricane that is the Supreme Court’s current docket involves Edith “Edie” Windsor and Thea Spyer, both lifetime residents of New York. The couple was legally married in Toronto, Ontario in 2007 and the ceremony was the culmination of a successful and loving 40-year relationship. After Thea died in 2009, Windsor was petitioned to pay a hefty $363,000 in federal estate taxes on the inheritance of her legal wife’s estate. If federal law had accepted their marriage with the same status as different-sex marriages recognized by their state, she would have paid no taxes.

This is just one example of the way that same-sex married couples are being ostracized and segregated, denied their unalienable rights as citizens of the United States. On June 6, 2012, Judge Barbara S. Jones concurred with this view, ruling that section 3 of DOMA is unconstitutional as it blatantly violates plaintiff’s rights under the equal fortification guarantees of the Fifth Amendment and ordered the tax monies be refunded to Windsor. Of course, this decision was appealed and is now being reviewed by the highest court in the nation. It is unfathomable how anyone can believe it is acceptable to only allow one segment of the population specific rights but not their almost identical cohorts and while we wait, with baited breath for the fruition of this case and its outcome, show support for the equalization of civil rights for all. No voices are too small except the ones left unheard.

Traci Schrader: I am a 44 year-old ex Army trauma nurse, 50% service-connected disabled veteran, single mother of a 15 year old male child and 23 year old adopted female child. I have been a personal trainer, a Licensed Vocational Nurse, a surgical technician a paramedic and now I am a government employee. I have been a lesbian since the age of about five and love women, the politics of being who we are, etc…

Having said that I also have a BS in social psychology a wealth of education and life experience and a candid sense of humor that is open and entertaining. I am thrilled to be on the Equality365 team as both a writer and your friendly neighborhood advice columnist. So o begin with a toast to you, esteemed reader, here’s to good company, good friends and good advice.




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Earle Dutton

Earle Dutton

Earle Dutton is the Chief Blogger and Editor of He founded in 2013 to provide information about LGBTQ friendly events of interest, and to support LGBTQ entertainers and supportive artists who visit our community. Earle is a successful businessman in the Pacific Northwest with a long history of support for and involvement in, the Northwest LGBTQ community. His personal interests include: music, theater, pets, culinary arts and technology.

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