When Worlds Collide, Pt. 2: The End of DOMA's Reign Over Same-Sex Marriage - Where Are We Now?

When Worlds Collide, Pt. 2: The End of DOMA's Reign Over Same-Sex Marriage - Where Are We Now?

by Susan Calistri Boesger, J.D., LL.M *

The Decision: U.S. v. Windsor

On June 26, 2013, the United States Supreme Court issued a 5-4 decision in United States v. Windsor, 133 S. Ct. 2675 (U.S. 2013), which declared Section 3 of the Defense of Marriage Act (DOMA, 1 USC § 7) unconstitutional under the Fifth Amendment of the Constitution, primarily for reasons of equal protection and due process.

[1] The Lawsuit

Edith Windsor and Thea Spyer, a same-sex couple together more than forty years, were lawfully married in Ontario, Canada in 2007. The couple resided in New York. Spyer died just two years later in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses. The Internal Revenue Service denied Windsor's claim and required Spyer's estate to pay $363,053 in estate taxes, based upon the language of Section 3 of DOMA, which provides:

"Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the 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 a wife."


[2] The Decision of the U.S. Supreme Court

... Justice Anthony Kennedy, writing for a majority of the Court ,wrote:

"DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects..."

[Justices Breyer, Ginsburg, Sotomayor, and Kagan joined Justice Kennedy in the majority opinion. Chief Justice Roberts, and Justices Scalia and Alito authored dissenting opinions; Justice Thomas joined Scalia's dissent, and Chief Justice Roberts joined Scalia's dissent in part..]


It is worthwhile to note that the Windsor case did not address Section 2 of DOMA, which specifically provides that no state is 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."

As a result, each state may still decide whether to allow same-sex marriage, and whether to grant full faith and credit to marriages legally entered into in other states.

Windsor's Effect on Rights of Same-Sex Marriages

In the three months following the decision in Windsor, guidance was issued by government agencies concerning the effect of the decision on the rights of legally married, same-sex couples, and much more can be expected in the coming months. In addition, cases have been filed and/or decided, in lower state and federal courts, which challenge state bans on same sex marriage and the full faith and credit provisions of DOMA.

Among the most important developments are:

[1] Internal Revenue Service

... Revenue Ruling 2013-17... clarified the Service's position with regard to the estate tax, which was specifically at issue in Windsor, as well as the Service's interpretation of the effect of Windsor on the many other provisions of the code that reference marital status...


[T]he Supreme Court's opinion in Windsor suggests that it understood that its decision striking down section 3 of DOMA would affect tax administration in ways that extended beyond the estate tax refund at issue.


Although sweeping in its scope,  Revenue Ruling 2013-17 takes the decidedly narrow view that only relationships recognized under state law as legal "marriages" qualify as marriages for the purposes of federal tax law, and that legal relationships such as civil unions or registered domestic partnerships do not qualify as marriages. The basis for this interpretation and decision may be valid, but it is anticipated that pressure will be increased for states to replace civil union and domestic partnership statutes with true marriage laws, in order to provide stability to same sex couples under federal tax law (in addition to the building pressure for all states to allow same sex marriage).

In furtherance of Revenue Ruling 2013-17, the Service has begun to issue guidance on specific issues on federal tax laws affected by Windsor...


[2] U.S. Department of Labor

... As a result of [Department of Labor and Employee Benefits Security Administration Technical Release No. 2013-04, "Guidance to Employee Benefit Plans on the Definition of "Spouse" and "Marriage" under ERISA and the Supreme Court's Decision in United States v. Windsor"], applicable to health and welfare plans, health and welfare benefits provided to a same-sex spouse and children of the marriage will not be taxable for federal income tax purposes. These amounts may still be taxable for state income tax purposes. In addition, a same-sex spouse may now be eligible for continuation coverage under COBRA, and an employee will be able to receive from a health flexible spending account or a health reimbursement account for medical expenses of qualified spouses and children, and to receive reimbursements from a dependent care flexible spending account. [Locke Lord, LLP, "Impact of Recent Same-Sex Marriage Developments on Employee Benefit Plans".]

In addition, the Department of Labor (DOL) has issued updated guidance regarding compliance with the FMLA. [29 USCS § 2611. ] ...


The effective date of the DOL's new FMLA is June 26, 2013, the date of the Windsor decision.

[3] Department of Homeland Security


After the Supreme Court's decision in Windsor, the immigration status of same sex couples remains unclear...


The FAQ is less clear, however. Q1 of the FAQ provides that a U.S. citizen may now petition for a family-based immigration visa on behalf of a same-sex spouse who is a foreign national, but then provides that such petition "will not be automatically deniedas a result of the same-sex nature of your marriage." [Department of Homeland Security, Implementation of the Supreme Court Ruling on the Defense of Marriage Act.]...

Open Issues Post-Windsor

... [W]hile the decision in Windsor applies only directly to the federal estate tax scheme, the decision will have wide-reaching effect on individuals, businesses and government agencies far beyond the facts of the specific case...

[1] Effective Dates

A significant issue left open by Windsor is to what extent the Supreme Court's ruling on DOMA applies retroactively. The decision in the Windsor case provided retroactive relief in the form of an estate tax refund with accumulated interest, but it is not clear whether the federal government will take a uniform position that the definitions of "marriage" and "spouse" under DOMA have been invalid since DOMA was adopted or since the effective date of the Windsor decision. Retroactive application will affect tax treatment of same-sex spouses (including the filing or amending of income, employment, estate, gift and other tax returns) and administration of benefit plans under ERISA (including the amendment or modification of employee benefit plans and qualified retirement plans and the resolution of imputed-income issues).


[2] Non-Recognition of State Rights

... The Windsor decision does not address, however, the extent to which same-sex spouses legally married in a state that recognizes same-sex marriage, will be recognized for purposes of federal law if they reside in a state where same-sex marriage is banned.


The decision in Windsor has had, and will continue to have, far-reaching effects on U.S. policy and administration in the months and years to come. As agencies grapple with revising decade-long policies to take the decision into effect and establish effective dates for implementation, states will continue to struggle with approvals or bans on same-sex marriage which affect their residents vis a vis Section 2 of DOMA.


* Susan Calistri Boesger, J.D., LL.M is the author of Florida Will and Trust Forms Manual, Fourth Edition.

Information referenced herein is provided for educational purposes only. For legal advice applicable to the facts of your particular situation, you should obtain the services of a qualified attorney licensed to practice law in your state.

LEXIS users can view the complete commentary HERE. Additional fees may apply. (Approx. 14 pages)

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