Windsor: Just the Beginning of the Supreme Court's Involvement in Same-Sex Marriage Commentary
Windsor: Just the Beginning of the Supreme Court's Involvement in Same-Sex Marriage
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JURIST Guest Columnist Theodore Seto of the Loyola Law School of Los Angeles says the US Supreme Court’s decision in US v. Windsor will not be its last concerning same-sex marriage, due to its repercussions on federal and state law interplay…

In US v. Windsor, the US Supreme Court struck down DOMA, the federal Defense of Marriage Act, as a “deprivation of liberty.” Most news reports have focused on Windsor‘s implications for federal tax and benefit rules. At least as important are its implications for same-sex marriage itself.

Technically, only Section 3 of the Act, which limited the term “marriage” to monogamous opposite-sex unions, was before the court. Nevertheless, the court’s opinion, read literally, struck down the entire act: “This requires the Court to hold, as it now does, that DOMA is unconstitutional…”

The court thus appears to have invalidated Section 2 as well. Section 2 relieved states of their obligation to recognize same-sex marriages authorized by the laws of other jurisdictions. So, for example, it relieved Virginia of its obligation to recognize same-sex marriages celebrated in Maryland or the District of Columbia.

If Section 2 is gone, however, same-sex couples in Virginia can now get married simply by driving across the Potomac. Virginia will then have to recognize their Maryland or DC marriage.

Why might the court have believed it necessary to invalidate the entire Act? Consider a same-sex couple lawfully married in DC. They buy a house in Arlington. If they are not still married for Virginia purposes, then at least in theory they are no longer married for at least some federal purposes either. Windsor, narrowly construed, might mean that whenever same-sex married couples change domicile, they may automatically become divorced for some federal purposes. Such a rule would be completely unworkable.

In the language of constitutional jurisprudence, therefore, Sections 2 and 3 were interdependent. Striking down Section 3 without striking down Section 2 might have created chaos in federal law.

If Virginia must recognize same-sex marriages authorized by the laws of other jurisdictions, however, the fact that the court declined, in Hollingsworth v. Perry, to reach the question of whether same-sex marriage is a constitutional right is largely moot. The practical effect of Windsor is to make same-sex marriage available throughout the US.

Justice Anthony Kennedy reinforced this conclusion, declaring that DOMA is unconstitutional because it is a “deprivation of liberty.” He could have grounded his conclusion in an argument based on states’ rights, but he did not. “DOMA’s principal effect,” he wrote, “is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality…”

This same language would seem to apply equally to Section 2, which does not authorize states to disregard marriages celebrated in other states generally, only same-sex marriages celebrated in other states. It identifies a subset of state-sanctioned marriages and makes them unequal for full faith and credit purposes.

A second non-obvious implication of Windsor stems from what Kennedy left out. Nowhere in his opinion are civil unions or registered domestic partnerships even mentioned. The opinion thus leaves open whether the federal government may or must treat couples who have entered into such relationships as “married” for tax, benefit, and other purposes.

This is a complicated question. In California, for example, older opposite-sex couples can choose between marriage and registered domestic partnership. California’s purpose in allowing such couples this choice is to allow them the state-law benefits of marriage without subjecting them to the sometimes unfavorable federal tax and benefit consequences.

Is offering such a choice a “deprivation of liberty”? Is it discriminatory? Arguably not, at least in states that give couples a choice between the two types of relationship.

A number of developments since Windsor suggest where the law may be heading. In Obergefell v. Kasich, the US District Court for the Southern District of Ohio ordered Ohio to recognize plaintiffs’ same-sex marriage performed in Maryland, notwithstanding Ohio’s constitutional provisions prohibiting such recognition. The court reasoned: “[T]he Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection is fatal.”

In O’Connor v. Tobits, the US District Court for the Eastern District of Pennsylvania held that, for ERISA (Employee Retirement Income Security Act) purposes, the term “spouse” included a same-sex partner whose marriage in Canada was confirmed by civil union ceremony in Illinois, their state of domicile.

On July 24, 2013, the Registrar of Wills in Montgomery County, Pennsylvania announced that he believed that Pennsylvania’s law prohibiting same-sex marriage was unconstitutional and issued a marriage license to a same-sex couple. The state Attorney General responded that she would not defend Pennsylvania’s prohibition.

On August 30, 2013, the IRS issued Revenue Ruling 2013-17 [PDF], 2013-38 I.R.B. 201 [PDF], holding that the law of the state of celebration of the marriage, not the law of the state of domicile, will determine whether taxpayers are married for federal tax purposes, thereby solving the divorce-by-change-of-domicile problem in the tax context. The same Revenue Ruling held that civil unions, registered domestic partnerships, and other formal relationships recognized by state law but not denominated “marriage” will not be treated as “marriage” for federal tax purposes.

By contrast, effective as of August 9, 2013, the Social Security Administration amended its Program Operations Manual to recognize same-sex marriages for Social Security benefits purposes if such marriages are recognized by the state of domicile, leaving open whether a same-sex couple previously treated as married for Social Security benefits purposes remains married if it changes domicile.

Recently, in Garden State Equality v. Dow, the New Jersey Superior Court held that New Jersey’s denial of marriage to same-sex couples violates the New Jersey Constitution. Prior to Windsor, the state supreme court had held to the contrary in Lewis v. Harris, but had held further that failure to provide same-sex couples with a status with equivalent benefits was unconstitutional. In response, the New Jersey legislature had enacted the Civil Union Act, extending civil union rights to same-sex couples.

The Garden State Equality court observed that Windsor only extended federal benefits to “married” same-sex couples: “[T]he Office of Personnel Management, Department of State, the Department of Labor, the Internal Revenue Service, and the Centers for Medicaid and Medicare, have stated that they will not be recognizing civil unions, and rather will be confining eligibility for benefits to spouses in lawful marriages.” As a result, the court noted, New Jersey law now had the effect of denying same-sex couples the federal benefits of marriage. This, the court concluded, violated the New Jersey Constitution.

At this point, it should be obvious that neither Windsor nor Hollingsworth is going to be the Supreme Court’s final word on the subject. But Windsor, in particular, has reshaped the American legal landscape.

Theodore Seto holds the Frederick J. Lower, Jr. Chair at Loyola Law School, Los Angeles, where he teaches tax law and policy. After clerking for Judge Walter Mansfield of the Second Circuit, he practiced for fourteen years as a civil litigator and tax attorney with the firms of Foley, Hoag & Eliot in Boston, and Drinker Biddle & Reath in Philadelphia. He joined the Loyola faculty in 1991. His current research interests include tax theory and jurisprudence.

Suggested citation: Theodore Seto, Windsor: Just the Beginning of the Supreme Court’s Involvement in Same-Sex Marriage, JURIST – Forum, Oct.. 22, 2013,

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