Same-sex marriage supporters demonstrate in front of the Supreme Court on March 27, 2013 in Washington, DC. (Photo by JEWEL SAMAD/AFP/Getty Images)
WASHINGTON (USA TODAY) -- The federal Defense of Marriage Act may be history in a
matter of months, but same-sex couples won't be the financial winners,
and the U.S. Treasury won't be the loser.
Those are but some of
the unexpected consequences that could emerge if the Supreme Court
overturns the 1996 law, which appeared likely - though far from assured -
following Wednesday's oral arguments.
MORE: Justices attack both sides in Defense of Marriage case
AUDIO AND TRANSCRIPT: Wednesday's arguments
years, the debate has focused on the law's denial of federal spousal
benefits to gay and lesbian couples married in states that have
legalized same-sex marriage. Those benefits include joint tax returns
and estate tax exclusions, Social Security and veterans benefits, civil
service and military pensions.
A Supreme Court ruling declaring
DOMA unconstitutional would make married same-sex couples eligible for
all those benefits, leading to the presumption that they would gain and
the federal Treasury would lose. But just the opposite is true.
2004 study by the Congressional Budget Office estimated that it would
increase government revenue by nearly $1 billion a year over 10 years -
just a fraction of the $3.8 trillion budget. That's mostly because
two-income gay couples with relatively equal earnings would pay more in
taxes, not less.
The estimate was based on 600,000 same-sex
couples nationwide in 2000 who might choose to marry. Today, there are
an estimated 131,000 in 10 states and the District of Columbia -
including 18,000 in California, where gay marriage was legal for five
months in 2008. So the impact would be even less.
going to net the federal Treasury more money," says James Esseks of the
American Civil Liberties Union, which helped represent New York widow
Edith Windsor in her challenge to the law.
Windsor, 83, was in
court Wednesday as a slim majority of justices indicated their
displeasure with the law. She stands to win back the $363,000 she paid
in 2009 on the estate of her deceased spouse, Thea Spyer - a tax she
would not have owed if their marriage was recognized by the federal
A few dozen other same-sex married couples, widows and
widowers also stand to gain because they had filed legal challenges or
tax claims that have not expired, says Mary Bonauto, civil rights
project director at Gay & Lesbian Advocates & Defenders. For all
other same-sex married couples, the impact of the court's ruling would
be prospective, not retroactive.
Bonauto represents 17 people in
New England with tax, Social Security and other such claims who would
stand to benefit. But, she cautions, "on the tax issue, it really does
cut both ways. Many people will pay more."
There are other potential legal and legislative consequences as well:
House Republicans who have defended the law because the Obama
administration refused to do so could mount a new effort in Congress.
But the political impetus has been the opposite recently, as Chief
Justice John Roberts noted Wednesday.
-- It could be a victory for
states' rights and a defeat for federal power, based on Justice Anthony
Kennedy's concerns about federalism. That's normally a conservative
cause, so the eventual decision's reasoning could offer consolation for
those who had defended DOMA.
-- A decision based less on the
law's discriminatory impact on gays and lesbians could also could give
an emotional boost to same-sex marriage efforts elsewhere, including
Delaware, Hawaiii, Illinois, Minnesota, New Jersey and Rhode Island.
Richard Wolf, USA TODAY