We're going to adjust tactics in the startupequality.org campaign, working off the premise that the Supreme Court will strike down DOMA sometime this month.
None of us are professional Court prognosticators, but, surveying the predictions of some of those who are, we are presuming that the Court will hold that the federal statute cannot override the policies of the various states as to who may and may not marry.
This means, we think, that "spouse" for purposes of federal laws and regulations will have to mean any person's spouse in any marriage, regardless of that person's gender. (Right now, because of DOMA, "spouse" under federal law has an attenuated and openly discriminatory definition, expressly requiring that a "spouse" be of an opposite gender.)
With respect to high net worth individuals in same sex marriages, the overturning of DOMA in such a manner probably solves the problem: "spouse" under SEC Rule 501 of Regulation D will simply have a natural and intuitive meaning. If you're married, you're married.
Less clear are those situations where the legal relationships between same sex partners are something other than marriage. These legal relationships include, but probably are not limited to, domestic partners, designated beneficiaries, and parties to a civil union.
We think that, immediately following the overturning of DOMA, the SEC should issue an interpretive release or guidance, to the effect that, for all purposes of the accredited investor definition, "spouse" will include not just spouses in marital relationships, regardless of gender, but also domestic partners, designated beneficiaries, parties to a civil union, and all other persons to whom any applicable law (federal, state or local) extends economic benefits.
Photo: HystericalMark / Flickr.