Contextualizing Varnum v. Brien: A Moment in History

Varnum v. Brien is the last case in a line of state constitutional law challenges in what has been a a fifteen-year campaign by LGBT public interest lawyers seeking legal recognition for same-sex couples. While the litigation may be over for now, the larger battle is just beginning. The Iowa Supreme Court’s ruling in Varnum will play a central role in this future battle. It stands as part of a major “moment” in the modern history of recognizing equal marriage rights for same-sex couples. This article describes the historical context in which Varnum was litigated and identifies three important “moments” or shifts in the battle for marriage equality. Varnum v. Brien is the last case in a line of state constitutional law challenges in what has been a a fifteen-year campaign by LGBT2 public interest lawyers seeking legal recognition for same-sex couples. While the litigation may be over for now,3 the larger battle is just beginning. The Iowa Supreme Court\u27s ruling in Varnum will play a central role in this future battle. It stands as part of a major moment in the modem history of recognizing equal marriage rights for same-sex couples. By moment, I do not mean a single point in time, but a prolonged period of a year or so over which a substantial shift occurs. I see three key moments in this modem battle for marriage equality. The first distinct moment is the period of time in 1996 surrounding the Hawaii litigation4 and the incipient backlash evidenced by the enactment of various Defense of Marriage laws, both at the federal and state level. The second moment occurred in 2003-2004. In that period of time, marriages for lesbian and gay partners became available in Massachusetts, 5 and a handful of mayors around the country (as well as some county commissioners) authorized the issuance of marriage licenses to same-sex couples.6 As a result, the national news media piped footage of the marriage ceremonies of same-sex couples into American households. Many people saw the face of the LGBT community and found it different from the images on prior television coverage of LGBT events. The third moment occurred in 2008- 2009, when legal marriages between same-sex partners became available outside of Massachusetts. The Iowa case is part of this third moment and, in my view, has played a pivotal role in determining the future. This article will provide additional texture for these three moments and explain briefly where this current moment is likely to lead

Taxing Families Fairly

This article focuses on the historical role of state marital property law in shaping the current federal tax rules regarding taxation of the family. Now that a number of states have granted status recognition to same-sex couples and granted them marital property rights, the tension between state property law and federal tax law has produced new problems. This article identifies those problems and proposes a solution that would restore uniformity and tax all families fairly

Family Drama: Dangling Inheritances and Promised Lands

Reviewing Hendrick Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012)

Planning for Same-Sex Couples in 2011

This article is the published version of a CLE outline prepared for ALI-ABA in January 2011 and then updated in March 2011. It includes citations to relevant authority regarding a number of tax issues that same-sex couples encounter both under the income tax and under the estate and gift tax system. The outline also includes a list of states that recognize the status of same-sex couples as married, registered domestic partners, civil unions, or similar forms of recognition, and identifies those states in which legislative action recognizing same-sex couples is possible and those in which it is not, due to restrictive state constitutional amendments