United States Supreme Court Rules Key DOMA Provision Unconstitutional

Written by: Rosemary B. Guiltinan [1]

On June 26, 2013, the United States Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”), which denied same-sex couples the federal benefits to which married opposite-sex couples are entitled. The Court concluded that Section 3 violated the equal protection principles contained in the Fifth Amendment because “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” United States v. Windsor, No. 12-307 (June 26, 2013).


DOMA was enacted in 1996, before any state in the country had legalized same sex marriage. Section 3 amended the federal Dictionary Act, which provides a federal definition of “marriage” and “spouse.” As amended, the Dictionary Act requires that in determining the meaning of any federal law or any federal agency ruling, regulation, or interpretation, “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.”

DOMA, of course, does not prevent states from legalizing same-sex marriage, and 13 states, as well as the District of Columbia, have done so since 1996. However, DOMA’s definition of marriage was controlling for the purposes of all federal statutes, regulations, and other directives-meaning that it impacted over 1,000 federal laws and scores of regulations in which marital or spousal status is addressed.

In 2007, Edith Windsor and Thea Speyer-residents of New York, which subsequently recognized same sex marriage as lawful-were married in Ontario, Canada. When Speyer died in 2009, Windsor inherited her entire estate. Because DOMA’s restrictive definition of marriage prevented Windsor from taking advantage of the federal estate tax exemption for surviving spouses, Windsor was forced to pay $363,053 in estate taxes. After the I.R.S. denied her request for a refund, Windsor sued, arguing that DOMA violated her right to equal protection under the Fifth Amendment. Two lower federal courts upheld her claim (and ordered a refund be paid), which was appealed to the Supreme Court.


Justice Anthony Kennedy wrote the majority opinion (in a 5-4 decision) upholding Windsor’s claim and invalidating DOMA’s definition of marriage. He began by observing that DOMA rejects the long-established principle that the states, rather than the federal government, are responsible for regulating and defining marriage. States that have legalized same-sex marriage, Justice Kennedy reasoned, deliberately “decided that same-sex couples should have the right to marry and so live… in a status of equality with all other married persons.” By denying recognition to legally married same-sex couples, DOMA unconstitutionally discriminated against a class of people that states (which have legalized same-sex marriage) have chosen to protect.


The Court’s holding means that same-sex couples who are legally married under state law must now be treated the same way-under all federal laws-as married opposite-sex couples. As a result, same-sex couples who are legally married in a state that has legalized same-sex marriage (including Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and New Hampshire, among others) are now eligible for the federal protections and responsibilities granted to married opposite-sex couples.

Some of the most significant impacts of the Court’s ruling will be:

Federal Income & Estate Taxes: Surviving same-sex spouses will be able to take advantage of the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.”
Same-sex couples who were married in a state that has legalized same-sex marriage and now live in a state that has done so will be able to file their federal and state tax returns jointly, just like opposite-sex couples.

Same-sex couples who were insured under one spouse’s employer-provided health insurance plan will no longer have to pay income tax on the value of the health benefits provided to the recipient spouse.

  • Social Security Benefits: Same-sex couples will be eligible for all of the Social Security benefits opposite-sex couples currently receive, including survivor benefits if one spouse passes away before the other.
  • Family and Medical Leave Act (FMLA) Protections: Same-sex couples will be eligible for the benefits provided to spouses by the FMLA including eligibility for time off from work to care for a spouse with a serious health condition.
  • Immigration: Americans married to same-sex foreigners will be able to apply for permanent resident visas for their spouses.
  • Employee Benefits: The federal pension laws and regulations affording certain protections to the spouses (and ex-spouses) of plan participants will now apply with equal force to same-sex spouses duly married in accordance with applicable state law. The same applies to health plan benefits extended to spouses of plan participants; for example, COBRA continuation coverage and special enrollment periods under HIPAA, among others.


The decision does not mean that state laws defining marriage to exclude same-sex unions are unconstitutional. However, in a lengthy dissent, Justice Scalia strongly suggested that the majority’s opinion was “deliberately” crafted to pave the way for challenges of such state laws. “In my opinion,” he wrote, “the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion…. [T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare… desire to harm’ couples in same-sex marriages…. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

It will therefore likely come as no surprise to Justice Scalia that efforts to overturn state law bans on same-sex marriage are already underway: just hours after the Court released its decision, the American Civil Liberties Union announced a nationwide campaign to overturn such laws state-by-state.