Lincoln, States' Rights and Taxation

Go see the movie “Lincoln”. The characters bring to life the dispute over slavery as a state’s right to defy the federal government which eventually led to the Civil War. With that dispute in mind, keep an eye on Windsor 110AFTR2d 2012-6370 which is brewing another state's right issue. Cert was granted on December 7, 2012 for the US Supreme Court to review this decision of the Court of Appeals for the Second Circuit which upheld a challenge to section 3 of the Defense of Marriage Act ( DOMA). That federal law denies recognition of same-sex marriages for purposes of administering federal law. Federal tax law now prohibits and limits access to many allowances, deductions and credits based on marital status. Marital status has been traditionally a determination made under a state's own laws. The Second Circuit allowed a marital deduction to the estate of the deceased same sex spouse in an amount allowable to a surviving spouse. In 1996, when DOMA was passed, the House Judiciary Committee's report stated that it was: necessary to defend and nurture the institution of traditional heterosexual marriage, defend traditional notions of morality, protect state sovereignty and democratic self-governance and preserve scarce government resources. You have to wonder what Honest Abe, The Great Emancipator, would have to say about that logic. It would seem that DOMA's days may be numbered.