Originally published on Passive Activities and Other Oxymorons on February 23rd, 2011.
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This is a bonus post. In October, I wrote a post on whether Massachusetts same sex couples who are married should consider filing amended returns. It was follow-up to a slightly longer treatment I had done on Gill v OPM which had held that portions of the Defense of Marriage Act were unconstitutional. DOMA has two major effects. The first is that states that do not allow same sex marriage for their own residents do not have to recognize the validity of marriages performed in other states. The second is that for all purposes of federal law marriage is defined as being between one man and one woman. Gill was about the second piece of DOMA. It was an action by several people who had been denied a variety of federal benefits by DOMA including the right to file an amended return.The effect of Gill was suspended pending appeal.
Robin and Terry are a mythical couple of indeterminate gender and marital status who were invented to help me deal with awkward pronoun problems.
The news is that President Obama has ordered the Justice Department to stop defending DOMA. Here is a link to the New York Times story.
In his letter, Mr. Holder said the administration legal team had decided that gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defense of Marriage Act was impossible to keep defending as constitutional
See my more extensive follow-up on this.