Supreme Court Invalidates Definition of Marriage Under the Defense of Marriage Act

On June 26, 2013, the United States Supreme Court, held in U.S. v. Windsor, Executor of the Estate of Spyer, et al, that Section 3 of the Defense of Marriage Act ("DOMA") definition of "marriage" ), which defines marriage as between a man and a woman for purposes of federal law, violates the due process and equal protection clause under the Fifth Amendment to the Constitution. The Court's majority opinion, which reflected a 5-4 split among its members, was written by Justice Anthony Kennedy, announced that the definition of marriage under DOMA demeaned those persons who were in a lawful same-sex marriage. This rendered DOMA unconstitutional under the facts of the case since New York recognized the couple's Canadian marriage and thereby the Estate was entitled to claim the marital deduction under Section 2056, as a deprivation of the liberty guaranteed to all persons under the Fifth Amendement. Justices Ginsburg, Breyer, Sotomayor and Kagan constituted the majority. Chief Justice Roberts filed a dissent. Separate dissenting opinions were filed by Justice Scalia, in which Justice Thomas joined and Roberts, in part, and Justice Alito, as to which Justice Thomas joined as to Parts II and III.

The DOMA decision has wide-sweeping implications to all states, including states which do not recognize same sex marriages. There are also foreign marriage issues that are generated as well as well as principles of full faith and credit and comity for state law purposes. Of course, there are important federal tax impacts that must be considered.

This post is not intended to set forth an "all inclusive" look at the subject but to put the reader on notice of the background of the case and its potential impacts.

Factual Background

Edith Windsor and Thea Spyer were married in Canada in 2007. They registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Thea's health, they traveled to Candada in 2007 for their marriage but they continued to reside in New York City. The State of New York treats under principles of comity, the Canadian (Ontario province) marriage as valid in New York.

Thea passed away in 2009 and left her estate to Edith Windsor. Windsor claimed the federal estate tax deduction under Section 2056 for transfers of property at death in a qualifying manner for the unlimited marital deduction. Access to Section 2056 for same-sex couples was denied under Section 3 of DOMA, which provided the...