I can't imagine a scenario where the courts would strike down the Federal DOMA AND leave it intact for couples living in states that don't recognize marriage equality.eJohn, I think you're right, over the long term.
But I have always imagined that, when the federal government finally does recognize same-sex marriage, it will depend on your state of residence. So as a resident of New Hampshire, our marriage would be recognized. But if we move to Pennsylvania, the IRS would demand separate filing. This, of course, will cause its own set of nightmares.
And even without moving, it's quite common for couples to file state returns in several states. For instance, a couple living in New York and working in New Jersey would have tax returns in one state that recognizes their marriage and one that doesn't. I would imagine that the treatment by the state of residence would then take precedence under comity.
Interestingly, this may provide an incentive for couples to maintain residence, even though they've moved to another state. This could be a windfall for them.
This all goes to show that recognizing marriages for everyone is the only sensible option to provide rights and benefits to same-sex couples. Any other path will result in a patchwork of incompatible policies, endless argument, and endless lawsuits.
The whole point of all the cases against DOMA have been the unequal treatment by the Federal government of certain legally married couples. It's hard for me to believe that they would be allowed to continue the unequal treatment, but just based on a different criterion.
Ultimately, I think the huge drain on government resources that will be created by having to deal with all the possible combinations of people working in one place and living in another and some couples being married here, but not there, and having to file multiple, conflicting tax returns WILL ultimately resolve this issue if the SCOTUS doesn't end the madness once and for all.
The more this type of insanity increases in complications and legal issues, the more likely the courts will be to end the problem. So I guess either way, we'll see progress, even as things get more complicated and more difficult.
When push comes to shove, it's all about the money, isn't it?