Windsor Is Just the Beginning of the Supreme Court's Involvement in Same-Sex Marriage

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 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. However, it appears that the Court 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 any obligation to recognize same-sex marriages entered into in the District of Columbia.

Now, if Section 2 is gone, then a same-sex couple living in Virginia can get married simply by driving across the Potomac. Further, this must be true because if they are not still married for Virginia purposes, then at least in theory they are no longer married for federal tax and benefit purposes either. If Windsor was so narrowly construed, it would mean that whenever a married same-sex couple changes domicile, they would, in effect, be divorced for federal tax and benefit purposes. Such a rule would be completely unworkable.

In constitutional jurisprudence language, Sections 2 and 3 were interdependent. Striking down Section 3 without striking down Section 2 would have created chaos in federal tax and benefit law.

If Virginia must recognize same-sex marriages authorized in other jurisdictions, then Hollingsworth v. Perry, where the Court declined to reach the question of whether same-sex marriage is a constitutional right, becomes largely moot. The practical effect of Windsor is it makes same-sex marriage available throughout the US.

Justice Kennedy reinforced this conclusion, declaring that DOMA is unconstitutional because it is a "deprivation of liberty." Even though he could have grounded his conclusion in an argument for states' rights, and there is much in the body of the opinion that would have allowed him to do so, 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..." The same language would seem to apply equally to Section 2, which does not authorize states to disregard marriages of other states generally, but only same-sex marriages. 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 Justice 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 and benefit purposes.

This is a complicated question. In California, for example, heterosexual couples can choose between marriage and registered domestic partnership. California's purpose in this choice is to allow heterosexual couples 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 a state like California that gives couples a choice between the two types of relationships.

Two cases decided 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. Also, the plaintiff was recognized as a "surviving spouse" in Illinois, the couple's place 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 had issued a marriage license to a same-sex couple. The state Attorney General responded that she would not defend Pennsylvania's prohibition.

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, Aug. 19, 2013,

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