Down with DOMA: Good News and Bad News

In the Windsor decision, the Court struck down Section 3 of the Defense of Marriage Act (hereinafter “DOMA”) because it was an unconstitutional deprivation of the equal liberty of persons that is protected by the Fifth Amendment.  DOMA attempted to treat “those persons [in same-sex marriages] as living in marriages less respected than others.”  This, it could not do.

Bad News:  In striking down DOMA, the Court did not legalize same-sex marriage in the United States.  Like the Prop 8 case (decided on the same day), the ruling was more limited, which leads to the…

Good News:  The federal government cannot discriminate against same-sex couples.

In the instant case, Ms. Windsor, a New York resident, had legally married her spouse in Canada.  When her spouse died, Ms. Windsor attempted to claim the estate tax exemption for a surviving spouse.  Under DOMA, she was denied.   The Court found that this discrimination was not permitted under the Constitution.  However, it did limit the opinion to “those lawful marriages.”

You can read more about Windsor here.

Gay marriage is legal in some states and not in others.  However, under Windsor, if a state permits same-sex marriage, the federal government must recognize that marriage.

To read more about how this may impact an employee requesting a transfer to a state that permits same-sex marriage, click here.

Other legal rights (sponsoring a foreign-born spouse for immigration purposes, collecting social security, and others) affected by the decision were discussed here.