The Legal Implications Of 'United States v. Windsor'

On June 26, 2013, the United States Supreme Court issued two landmark decisions on same-sex marriage. In United States v. Windsor 507 U.S. ___ (2013) (the "Windsor Decision") the Defense of Marriage Act ("DOMA"), which barred the federal government from recognizing same-sex marriages, was found to be unconstitutional by the Supreme Court by a 5-4 vote. Additionally, in Hollingsworth v. Perry 507 U.S. ___ (2013) (the "Proposition 8 Decision"), the Supreme Court opened the door for same-sex marriages to resume in California.

It is important to note that the Windsor Decision and the Proposition 8 Decision do not require that same-sex marriages be recognized in states that do not already allow it. The Windsor Decision merely requires that the federal government treat same-sex couples as married if they reside in states or foreign jurisdictions that allow same-sex marriages. At the present, 13 states and the District of Columbia recognize same-sex marriages, highlighting the division of the states on this issue.1 The Court's decisions leave many issues unresolved and questions unanswered, but at the same time provide opportunities for planning for same-sex couples.

1. CASE SUMMARY

   United States v. Windsor is essentially a tax case. Edith Windsor alleged that the federal government's refusal to acknowledge her marriage to Thea Spyer, her partner of forty-four years, violated equal protection principles of the United States Constitution. As the surviving spouse and executor of Thea's estate, Edith claimed she incurred over $360,000 in federal estate tax because the federal government pursuant to DOMA did not recognize her valid marriage under Canadian law. As a result, she was not permitted to take advantage of the unlimited federal estate tax marital deduction for property passing to her from Thea's estate. The United States maintained (eventually without support from the Department of Justice) that DOMA was entitled to a presumption of constitutionality and that DOMA's definition of marriage did not offend the equal protection clause. The two women lived in New York, where same-sex marriage is legal. Windsor won at the District Court level and before the Second Circuit Court of Appeals, paving the way for our country's highest court to hear the argument on the constitutionality of DOMA.

   At issue in the Windsor Decision was Section 3 of DOMA, which provides a definition of "spouse" as "a person of the opposite sex who is a husband or wife." In its 5-4 majority decision written by Justice Kennedy, the Supreme Court declared Section 3 unconstitutional. While the effects are broad, the Supreme Court did not hold that all prohibitions on same-sex marriage violate the constitution, nor did the Supreme Court redefine marriage nationally. Instead, the Supreme Court respected the rights of the states to decide what marriage will be. For federal purposes, however, same-sex couples will now maintain the same status as opposite-sex couples; same-sex couples who are legally married and live in states which recognize same-sex marriages will be treated by the United States government as married, and will be afforded the same rights and protections as opposite sex married couples. These rights include well over 1000 possible benefits under federal law.

   Notably, other parts of DOMA remain in effect including Section 2, which allows states which do not allow same-sex marriage to ignore the legal marriages or unions from other states around the country. This presents a conundrum for those same-sex couples who marry in a state which recognizes same-sex marriages and later move to a state where their union is not acknowledged.

   At issue in the Proposition 8 Decision was a California law defining marriage as solely between a man and woman. In 2008, the California Supreme Court found that limiting marriage to opposite-sex couples violated the rights of same-sex couples under California's constitution and could not be used to prevent same-sex couples from marrying. Voters overturned this decision via Proposition 8 in the November 2008 election. In 2009, two same-sex couples challenged Proposition 8 in the United States District Court for the Northern District of California. In August 2010, the District Court struck down Proposition 8 and in February of 2012, the Ninth Circuit Court of Appeals upheld the District Court's decision.

   In a separate 5-4...