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    Red States and Blue States after DOMA

    I'm delighted about the Supreme Court's decision striking down the Defense of Marriage Act in United States v. Windsor. It's a triumph for human dignity, and also a triumph for federalism. The federal government should not be in the business of restricting the rights that individual states extend to citizens. If thirteen states see fit to recognize same-sex marriage, Washington should not interfere. 


    One result, however, is that the divide between the red states and the blue states will be wider tomorrow. Millions of Americans will only be able to be married in some states and not others, and  may only have their existing marriages recognized in certain states. If you drive from Boston to Chicago you'll be married as you drive through Massachusetts and New York, just dating as you go through Pennsylvania, Ohio, and Indiana, and only in a civil union when you reach Illinois. That's silly, but it has real personal consequences, and it will have real economic consequences for different states. The end of DOMA opens a whole new front of inter-state business competition, and it's the red states that are most likely to sing the blues.


    The divide between the universal-marriage states and limited-marriage states is likely to have very serious effects on business's ability to attract and retain certain kinds of workers. Would you take a job if it meant that your marriage would not be legally recognized any more? And how would you turn down a job that meant having your marriage recognized, for the first time, in the place where you lived? But on the other hand, would you accept a transfer to the Detroit office if it meant giving up being married? We're not just talking about fringe benefits here.


    This eventually means that some businesses are going to have good reasons to work in the states where all their workers can get married if they want; it's a lot easier. It's going to get harder to attract businesses from pro-marriage states to limited-marriage states. And it will be hardest of all in businesses that rely heavily on educated and generally mobile knowledge workers: exactly the workers that are most important in a post-industrial economy.


    Smart employers are going to start thinking about prize workers they can poach from competitors in the wrong states. Smart politicians are going to start talking to businesses they want to lure across state lines. And people beginning start-ups are going to find them a little bit easier to start up in Seattle and Boston than they will be in Austin and Durham. That's just economic reality.


    We'll see how long it takes for business-oriented politicians in some of those limited-marriage states to see the light on marriage equality. Longer than I'd like, of course. But probably not that long.


    Correct me if I'm wrong (and it's entirely possible), but if homosexuals get married in Massachusetts, they'll still be married even in Ohio as far as the federal government is concerned, right? I realize that Ohio wouldn't recognize the marriage (which would still be frustrating), but as far as federal taxes you'd be able to file as married, right? And federal inheritance laws would still treat you as if you're married, right?

    This is my understanding of the recent ruling, so correct me if I'm wrong.

    That is interesting, I hadn't thought of that. I wonder if we'll see a lot of people taking vacations in states that have passed marriage equality laws and going home married. I wonder if some states will take advantage of that to make some extra cash selling marriage licenses, like Nevada does. I wonder if there's some areas in the law where being "federally married" but not married in this state would cause a conflict between state and federal law.

    The economics are huge here.  There are going to be states where it will just be hard for certain companies to recruit workers.  It will especially have an effect as it affects the lives of executives.

    "Full faith and credit" will trump local refusal to issue licenses. Just as the Saudi princes could check into the Houston Hilton with four wives yet fear no bigamy beef, so will married in Massachusetts be married in Texas. DOMA excluded marriage equality from the full faith and credit clause ( unconstitutionally, of course) because it was obvious that absent such exclusion it was "game over" as soon as even one state legalized marriage equality.

    What do you think would happen, however, if a gay couple living in Texas and married in Massachusetts filed as married on their Texas state income tax returns? Would Texas just allow it? Although I think such a couple would have an excellent chance in court (under the "full faith and credit" clause), I suspect at least one couple will have to go to court before that's fait accompli.

    Litigation will be required. Texas will win at the District and maybe even Circuit Court but lose at the supremes .

    Of course, this is all the more reason to prevent the Republicans from retaking the White House in 2016 (and beyond).

    I think there's going to be a mess, with much more litigation. Full faith and credit should eventually prevail, but I don't think states that have passed constitutional amendments forbidding same-sex marriage to roll over without going through another Supreme Court case, at least.

    Here's a chart from the NY Times about how the federal government plans to proceed:

    You'll notice that if you're married in one state but move to one where it's forbidden, your "federal benefits will vary by agency."

    Immigration, the Defense Department, and VA considers you married wherever you go. The IRS and Social Security consider you not married if you're in a state that forbids your marriage. To this, I can only say: !

    So, if you move from a pro-marriage state to an anti-marriage state, you can't file a joint tax return any more. Your Social Security benefits gets screwed up. And if one spouse passes away, the other gets consoled with a massive inheritance tax because they're "not married." Fun times.

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