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MISSION NOT YET ACCOMPLISHED

September 4, 2013

On Thursday, August 29, 2013, the United States Treasury Department and the Internal Revenue Service issued a rule change whereby all same-sex couples who are legally married will be recognized as married for the purposes of federal income taxes, regardless of whether the state in which they reside recognizes their marriage.  This ruling is in response to the United States Supreme Court’s decision in June, commonly known as United States v. Windsor, whereby parts of the Defense of Marriage Act (DOMA) were struck down.  DOMA is the federal law mandating, in relevant part, that marriage was between one man and one woman.  This case found that the federal government could not treat married persons differently because they were in a same-sex marriage.  The decision was silent as to how the federal government should treat non-marriage same-sex relationships, such as civil unions or domestic partnerships. One such “non-marriage” state is New Jersey, at least currently.  The decision also failed to create a right to same-sex marriage in states that did not recognize these relationships.

As the media praised the rule changes by the Treasury Department and the Internal Revenue Service last week as yet another victory for the Gay Rights Movement, those of us in New Jersey who have entered a civil union or have traveled to another state to get married (and those expecting to) were left feeling unfulfilled.  Instead of chanting “Civil rights for all,” we are saying, “Civil rights for a few more people than yesterday…whoohoo.”  Here’s the rub.  If you reside in New Jersey, where civil unions between same-sex partners are recognized but marriage is not, even if you leave this state, get married in a state or country that recognizes same-sex marriage, New Jersey continues to recognize your bond as a civil union only.  In a New York Times article from August 29th, journalist Annie Lowrey quoted Treasury Secretary Jacob J. Lew, who stated, “This ruling…assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”  Secretary Lew was very specific in saying “legally married.”  While momentous strides have been made to afford the same rights to same-sex partners as opposite-sex partners, the journey, at least in New Jersey continues.  There are several cases currently pending or milling about in New Jersey’s court system, but there is no specific time frame for these cases to be resolved.   While the state legislature has approved a same-sex marriage bill, Governor Chris Christie has vetoed same, albeit prior to the Supreme Court’s rulings in June.  He has further stated that he would veto the bill again if brought to him today, even  as our federal government continues to make changes to provide same-sex married couples with the same rights as different-sex married couples.  The only way to provide same-sex couples in New Jersey the same rights as everyone else would be to approve and enact a law allowing same-sex marriage in this State.

Jonathan Z. Petro is a Partner at CLDDS and specializes in Family and Matrimonial Law, Adoption and Surrogacy, and Civil Unions.  He can be contacted at 732-797-1600, or at jpetro@cldds.com and would be happy to assist you.


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