Each advance in the battle for same-sex marriage is less than what it appears. On the very last day of its term, the U.S. Supreme Court issued eagerly anticipated decisions in two same-sex marriage cases. On their face, these decisions appear to be victories for the gay community, but in reality these decisions raise many more questions than they answer.
In Windsor v. United States, the Supreme Court held unconstitutional the federal government's refusal to recognize same-sex marriages that are recognized by the states. In Hollingsworth v. Perry, the Supreme Court did not reach the question of whether California's Proposition 8 ban on same-sex marriage is constitutional, but its dismissal of the case will once again clear the way for same-sex couples to marry in that state.
These decisions were not unexpected, but they do open a Pandora's box of questions that will impose new burdens on same-sex couples across the United States.
The basic question raised by the Windsor and Perry decisions is, "Who will the federal government now consider to be married?"
This seems like a question with an easy answer, but it's not. The problem is that the federal government has historically relied on the states to determine who is married. Faced with a patchwork quilt -- some states recognize same-sex marriages, others recognize only same-sex civil unions or domestic partnerships, and most refuse to recognize any same-sex relationships at all -- how will the federal government figure out which same-sex couples are married?
The simple case would seem to be the same-sex couple who have married in a state that recognizes same-sex marriage, say, Massachusetts. It would seem, for example, that this couple should be able to file a joint federal income tax return next April 15. But what if this couple moves to a state that does not recognize same-sex marriage -- such as my home state of Pennsylvania. Will the couple's marriage still be recognized for purposes of federal law? In other words, which state's marriage laws would apply in determining whether this couple is married, Pennsylvania's or Massachusetts'?
The harder cases involve couples who have entered into civil unions and domestic partnerships. The majority opinion in Windsor specifically limits its holding to "lawful marriages." If a civil union or domestic partnership is intended to be the legal equivalent of a marriage (as many are), will a same-sex couple in such a relationship be permitted to file a joint federal income tax return? Or will the couple continue to file separate, "single" returns?
What about relationships that are not the full legal equivalent of marriage? The new civil union regime in Colorado, for example, grants same-sex couples all of the rights and obligations of marriage -- except the right to file a joint state income tax return. Does getting all of the rights and obligations of marriage except this one mean that same-sex couples in Colorado civil unions will not be considered married for federal purposes?
Because the Windsor case relied heavily on the relationship between the federal government and the states and explicitly confined its opinion to marriages recognized by the states, what is the impact of this decision on same-sex marriages entered into in other countries -- for example, Canada? Interestingly, the Windsor case itself dealt with a Canadian marriage that was recognized under New York law. Should we take the court's decision to mean that foreign marriages will be recognized -- but only if the couple lives in a state that recognizes same-sex marriage?
What about couples who live in a state that does not recognize same-sex marriage but who go to a state that does recognize same-sex marriage solely for the purpose of marrying there? How will these "evasive" marriages be treated for purposes of federal law?
These are but a few of the questions that same-sex couples -- and the federal government -- now face. I look forward to seeing what guidance the federal government gives to married same-sex couples. But based on past experience, I do not hold out much hope.
What I fear is that it will be left to same-sex couples -- and their lawyers -- to sort out these questions. This uncertainty will end up imposing a steep psychological and monetary cost on same-sex couples -- and leave them wondering at what price this "victory" has come.
Anthony C. Infanti is associate dean for academic affairs and professor of law at the University of Pittsburgh School of Law.