Should We Say "I Do"?

by Michael Einheuser, Ph.B. J.D.

The Legal Marriage Counselor

Let's face it. When a loved one gets down on one knee, gives you a ring and asks for your hand in marriage, your response isn't likely to be "How will this affect our taxes?" Or will it? Same-sex couples in Michigan live in a legal limbo. In its ruling in United States vs. Windsor, the Supreme Court struck down Section 3 of the Federal Defense of Marriage Act (DOMA), which had defined "marriage" and "spouse" as referring exclusively to husbands and wives of the opposite sex. In declaring this unconstitutional, the Court said defining marriage is the exclusive province of the states. If a state wants to recognize same-sex marriages, that's none of the federal government's business.

But the Court left Section 2 of DOMA intact. Section 2 says no State of the United States shall be required to recognize a relationship between persons of the same-sex that is treated as a marriage under the laws of another state. In other words, states, like Michigan, are free to ignore marriages that states, like California, recognize. And that's the policy of Governor Rick Snyder and Attorney General Bill Schuette.

Michigan same-sex couples married in "recognition" states have valid marriages for most Federal laws and regulations. The same goes for the 300 or so couples married in Michigan on March 22, 2014 in the hours before the 6th Circuit Court of Appeals ordered a stay on Judge Bernard A. Friedman's ruling in DeBoer and Rowse vs. Snyder.

April DeBoer and Jayne Rowse were prohibited from jointly adopting their children because Article 1 Sec 25 of Michigan's Constitution says "the union of one man and one woman in marriage shall be the only agreement recognized as marriage or similar union for any purpose." They sued in federal court alleging denial of equal protection of law as prohibited by the United States Constitution. Attorney General Schuette defended this language as "the will of the people" because it originated as the so called "Michigan Marriage Amendment" from an initiative petition approved by the voters in 2004.

Judge Friedman struck down the Michigan Marriage Amendment as unconstitutional. He concluded his very thoughtful 30 page opinion and order with the following observation:

In attempting to define this case as a challenge to "the will of the people,"... state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court's fervent hope that these children will grow up "to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor, 133 S. Ct. at 2694. Today's decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail. But these marriages don't exist in the eyes of those in charge of our state.

Michigan same-sex couples curious about the legal impact of their marriage are confronted with this disturbing reality - IT DEPENDS!

I will respond to readers' questions on the matter. Please contact me at 248-398-4665 or www.einheuserlegal.com.

Michael Einheuser is an estate and retirement planning attorney in Bingham Farms who's listed in the Pride Source Yellow Pages. He specializes in helping families preserve their wealth, reduce potential taxes and eliminate the uncertainties of probate. See page 10 for the ad on Einheuser's same-sex legal marriage advice workshop. For more LGBT and LGBT friendly attorneys, visit the Pride Source Yellow Pages at http://www.pridesource.com/directory.html.
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