How the DOMA discriminates against Same-Sex Marriage

By now, unless you have been living under a rock, everyone knows that in the State of New York, same-sex couples may now marry.  However, just because same-sex couples have the same right to marry as opposite-sex couples, this does not mean that they have all of the same rights as opposite-sex couples.

Since the passage of same-sex marriage in New York, I have discovered that because of the Defense of Marriage Act (“DOMA”), which was signed in 1996 by President Clinton, same-sex married couples do not have all the same rights that are bestowed upon  opposite-sex marriage couples.  Because there are so many issues and areas that the DOMA affects, I am going to do a weekly blog series on the different ways the DOMA affects same-sex couples. This first blog will touch upon the DOMA, the federal implications of  the law and the current lawsuits pending around the country.


The DOMA Section 2 states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The DOMA Section 3 states:

In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.

After the passage of the DOMA in 1996, the General Accounting Office (“GAO”) was asked to furnish a report to Congress indicating all the federal laws, which the DOMA may affect.  In 1997, the GAO issued a report stating there were 1,049 federal laws in which marital status is a factor.  Thereafter, the GAO updated their report in 2004 to include 1,138 federal statutory provisions. In the GAO’s 2004 report to the Majority Leader, Bill Frist, of the United States Senate it states,

The Defense of Marriage Act (DOMA) provides definitions of “marriage” and “spouse” that are to be used in construing the meaning of a federal law and, thus, affect the interpretation of a wide variety of federal laws in which marital status is a factor.


Currently, there are six states that recognize same-sex marriage (Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and the District of Columbia).  California legalized same-sex marriage on June 16, 2008, but in November of 2008, voters passed the constitutional amendment restricting members of the same-sex from marrying each other.  There are approximately five additional states that allow either civil unions or domestic partnerships for same-sex couples (California, Hawaii, Illinois, Nevada and New Jersey).  New Mexico and Maryland recognize such marriages from other jurisdictions.  The remaining states have either a constitutional amendment or a state law defining marriage similar to the federal DOMA definition.

The state constitutional amendments and statutes raise additional questions regarding a couple’s ability to move to another state and have their valid marriage recognized in a state that does not recognize same-sex marriage, civil unions or domestic partnerships.



On September 2, 2008, a woman named Karen Golinski submits an application to enroll her spouse Amy Cunninghis under her employer-provided insurance plan.   Golinski files a compliant alleging that it was discrimination to deny insurance coverage for her spouse.  On January 13, 2009 Chief Judge Alex Kozinski orders that Golinski be allowed to enroll Cunninghis om the Blue Cross/Blue Shield plan that covers Golinski and her son.  The Office of Personnel Management states it will ignore Kozinski’s ruling and directs Blue Cross not to process Golinski’s insurance application.  On January 20, 2010 Lambda Legal files suit against the federal government in the U.S. District Court for the Northern District of California. On March 16, 2011, the Judge grants the government attorney’s motion to dismiss the lawsuit, but allows the Plaintiffs to file an amended complaint to directly challenge the constitutionality of the DOMA.  The case is currently pending the courts.

On March 3, 2009, GLAD  filed a federal court challenge, Gill v. Office of Personnel Management based on the Equal Protection Clause and the federal government’s heretofore consistent deference to each state’s definition of marriage. The case questioned only the DOMA provision that the federal government defines marriage as the union of a man and a woman. On May 6, 2010, Judge Joseph L. Tauro heard arguments in the U.S. District Court in Boston. On July 8, 2010, Judge Tauro issued his rulings in Gill granting summary judgment for the plaintiffs.  In Gill, the Court held that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

On July 8, 2009, Massachusetts Attorney General Martha Coakley filed a suit, Massachusetts v. United States Department of Health and Human Services, challenging the constitutionality of DOMA. The suit claims that Congress “overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.”

In Massachusetts the Court held that the same section of DOMA violates the Tenth Amendment and falls outside Congress’ authority under the Spending Clause of the Constitution.

The above decision in both Gil and Massachusetts were automatically stayed after the Department of Justice entered an appeal on October 12, 2010.

Two more suits were filed on November 9, 2010, in courts that are part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases. GLAD filed Pedersen v. Office of Personnel Management in District Court in Connecticut making the same arguments proffered in Gill for same-sex couples from Connecticut, Vermont, and New Hampshire. The ACLU filed Windsor v. United States in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse was subject to federal taxation as if they were unmarried.


In February of 2011, the Obama Administration issued a directive to the Department of Justice telling them to stop prosecuting cases related to DOMA.  The announcement was made in a letter from Attorney General Eric Holder to congressional leaders in relation to two lawsuits, Pedersen v. OPM and Windsor v. United States. Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.  Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”

Thereafter on March 4, 2011, Speaker of the House Boehner announced plans to convene the BLAG to consider how the House of Representatives should defend DOMA Section 3 in place of the Department of Justice. On April 18, 2011, House leaders announced they had picked former United States Solicitor General Paul Clement to represent the BLAG, and Clement, without opposition from other parties to the case, filed a motion to be allowed to intervene in the suit “for the limited purpose of defending the constitutionality of Section III” of DOMA.

WHAT DOES THIS MEAN FOR SAME-SEX COUPLES? Continue reading How the DOMA discriminates against Same-Sex Marriage

Who Keeps the Ring When the Wedding is Called Off?

They say hell hath no fury like a woman scorned.  That woman never met California business owner James Mekalianis, who is suing his former fiancee for the $53,000 engagement ring he gave her.  Their story is similar to many couples.  Girl mets Boy.  Boy and Girl fall in love.  Boy proposes marriage to Girl.  Girl says yes.   Then right before the wedding ceremony someone gets cold feet and breaks off the engagement.

Now the question becomes who keeps the engagement ring?

In the state of New York, under Civil Rights Law § 80-b, a person may be entitled to the recovery of property given in contemplation of a marriage that does not take place, regardless of who is responsible for the failure of the marriage to go forward.  Who is at fault over the break up is totally irrelevant to whether a party is entitled to the return of the engagement ring.  However, if the party giving the ring knows that there exists an impediment to a lawful marriage (e.g. the party is still married), this may preclude recovery of the ring.

The history surrounding the current gift in contemplation of marriage law is an interesting one.  Early in American legal history, women were able to recover damages when men promised marriage and then reneged.  Some states codified this breach of promise, and the laws were commonly referred to as heartbalm statutes.

Between the 1930s and 1950s, America experienced a backlash from these heartbalm statutes when it was realized that some avaricious women were deceiving men into proposing marriage  and later suing these men for a breach of promise.  In NY, the public proclaimed a huge uproar over not only these deceptive women but greedy attorneys who initiated these lawsuits.  In the early 1930s, newspapers editorials ran articles expressing their distaste for heartbalm statutes and pleaded with legislatures to rectify the inequity in the law.  In 1935, the NY Legislature enacted article 2-A of the Civil Practice Act.  The article sought to abolish causes of action for, among other things, breach of contract to marry.

After the passage of the anti-heartbalm statutes, courts were faced with the question of what happens when the injury is not from the loss of love, but from gifts given in the anticipation of marriage.  Prior to 1965,  NY courts determined that donors were not permitted to recover ante-nuptial gift.   During the period between 1935 and 1965, a party retained any gifts given in contemplation of marriage.  NY’s anti-heartbalm legislation, eventually led to another public outcry.  The public voiced their dissatisfaction with the current law stating that “a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one.”  See Goldstein v Rosenthal, 56 Misc 2d 311, 312-13 [Civ Ct 1968]

Finally, in 1965, section 80-b was added to the Civil Rights Law to provide that nothing in the statute shall be construed to bar a right of action to recover property transferred solely in consideration of a contemplated marriage that has not occurred.

As the current law stands, if two people are engaged and either party gives the other a gift in contemplation of the engagement, that person may recover the property if the marriage does not occur, regardless of who breaks off the engagement.

This principal applies to other gifts, not only engagement rings.  In Mancuso v Russo, the donor sued his ex-fiancee to rescind a deed transferring real property. The Supreme Court entered a judgment in favor of the plaintiff and the defendant appealed. The Supreme Court, Appellate Division, held that finding that donor’s gift of real property was conditioned upon his subsequent marriage to beneficiary was sufficiently supported in the evidence.   See Mancuso v Russo, 132 AD2d 533 [2nd Dept 1987]. The Court further stated that “since the marriage never took place, the conveyance of the property to the plaintiff would satisfy the “clear purpose of Section 80-b…”  See Id at 534.

If you have an ex-fiance(e) who refuses to return a gift given in contemplation of the marriage, you may have a cause of action to recover the property or the value of the property.  For someone like Mr. Mekalianis, that is good news.  Of course, Mr. Mekalianis is from California and each state has their own laws regarding gifts in contemplation of marriage.




Celebrating the 1 year Anniversary of New Temporary Maintenance Statute: Are We Ready for a Divorce?

Almost nine months after the effective date for the temporary maintenance statute, practitioners are beginning to see a handful of published decisions regarding the new language.  After dealing with the new provision for almost a year, are we ready to split with the new language or are we finding that it is a useful tool for determining temporary pendente lite support?

At first, I thought that the statutory provision was going to cause more litigation, however; our office has found that these guidelines have provided us with a useful mechanism for predicting the likely pendente lite award our client will either have to pay or will likely receive.  It allows us to give clients a reasonable expectation regarding a pendente lite support award.

One of the big questions for many practitioners when the statutory provisions first went into effect was, were Courts going to consider the carrying charges, awards of temporary child support, add-on child support expenses and health insurance expenses when determining a fair temporary maintenance award. Another question posed by practitioners was, were Courts going to be able to impute income so early on in a case when discovery has not yet been completed. It appears the Court has answered many of our lingering questions.

One clear trend arising from the line of cases listed below is that a Court is more likely to deviate from the presumptive award when the monied-spouse is paying some or all of the carrying charges on the marital residence. It also appears clear that the Courts are more than willing to impute income when it is deemed appropriate.

Below is a chart outlining the recent case law stemming from the new temporary maintenance language.


Case H’s income W’s income Temporary Maintenance Formula Deviation Factors New Award Carrying Charges
Scott M. v Ilona M. $143,677.77 $33,705.36 $37,016.14 YES $24,677.42 No
Jill G v Jeffrey G $210,187 $95,120 $10,783.33/mo NO Same 50% to each party
AC v DR $529,857 $8,516 $148,297 YES $130,767.50 Monied-spouse paying all carrying charges and living in house
Valentin v Valentin $72,246.28 $0.00 $21,673.88 YES $500 bi weekly Monied spouse paying all carrying charges
CK v MK $146,818 $127,936 $0.00 YES $2,000/mo Monied spouse paying mortgage, wife’s auto expenses and $2,000/mo in child support
Margaret A. v Shawn B $256,909 (imputed income) $0.00 $74,609 NO Same Non-monied spouse to pay carrying charges
JH v WH $96,533.55 $11,289.46 $26,708.26 NO Same Monied-spouse NOT ordered to pay carrying charges 



SC v JRC $105,397.16 $44,000 $14,529.49 NO Same Monied-spouse ordered to pay $300/month toward carrying charges and $1,000/month in child support 



HK v JK $1,834,731 $0.00 $150,000 capped income of $500,000 

Court looked at factors and went over $500,000 income

NO $210,600 Monied-spouse NOT ordered to pay Wife’s rental apartment expenses
Ingersoll v Ingersoll $8,900/mo $4,770/mo $425/month NO $425/mo No carrying charges
SG v PG $125,000 $40,000 $26,000 YES $24,000 Monied-spouse ordered to pay some of the carrying charges and $1,500/mo in child support