United States v. Windsor

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United States v. Windsor
Seal of the United States Supreme Court.svg
Argued March 27, 2013
Decided June 26, 2013
Full case nameUnited States, Petitioner v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.
Docket nos.12-307
Citations570 U.S. ___ (more)
133 S.Ct. 2675; 186 L.Ed.2d 808
Prior historyDOMA declared unconstitutional sub. nom. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012); Affirmed, 699 F.3d 169 (2d Cir. 2012)
Related cases
ArgumentOral argument
Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states. The judgment of the Second Circuit is affirmed.
Court membership
Case opinions
MajorityKennedy (opinion), joined by Ginsburg, Breyer, Sotomayor, Kagan
DissentScalia, joined by Thomas; Roberts (part I)
DissentAlito, joined by Thomas (parts II, III)
Laws applied
U.S. Const. amend. V; Defense of Marriage Act
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United States v. Windsor
Seal of the United States Supreme Court.svg
Argued March 27, 2013
Decided June 26, 2013
Full case nameUnited States, Petitioner v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.
Docket nos.12-307
Citations570 U.S. ___ (more)
133 S.Ct. 2675; 186 L.Ed.2d 808
Prior historyDOMA declared unconstitutional sub. nom. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012); Affirmed, 699 F.3d 169 (2d Cir. 2012)
Related cases
ArgumentOral argument
Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states. The judgment of the Second Circuit is affirmed.
Court membership
Case opinions
MajorityKennedy (opinion), joined by Ginsburg, Breyer, Sotomayor, Kagan
DissentScalia, joined by Thomas; Roberts (part I)
DissentAlito, joined by Thomas (parts II, III)
Laws applied
U.S. Const. amend. V; Defense of Marriage Act
Same-sex couple celebrating legal victory at San Francisco Pride 2013

United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307), is a landmark case[1][2][3] in which the United States Supreme Court held that restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment, because doing so "disparage[s] and ... injure[s] those whom the State, by its marriage laws, sought to protect in personhood and dignity."

Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007. Spyer died in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses. She was barred from doing so by Section 3 of DOMA (codified at 1 U.S.C. § 7), which provided that the term "spouse" only applied to marriages between a man and woman. The Internal Revenue Service found that the exemption did not apply to same-sex marriages, denied Windsor's claim, and compelled her to pay $363,053 in estate taxes.

On November 9, 2010, a lawsuit was filed against the federal government in the United States District Court for the Southern District of New York, where Windsor sought a refund because DOMA singled out legally married same-sex couples for "differential treatment compared to other similarly situated couples without justification."[4] On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff's position that DOMA violated the U.S. Constitution and said he would no longer defend the law in court. On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) continued defense of the law. On June 6, 2012, Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest. The U.S. Second Circuit Court of Appeals affirmed the decision on October 18, 2012.

BLAG petitioned the U.S. Supreme Court to review the decision, and the Court issued a writ of certiorari in December 2012. On March 27, 2013, the court heard oral arguments. On June 26, 2013, the U.S. Supreme Court issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment."[5]:25

On the same day, the court also issued a separate 5–4 decision in Hollingsworth v. Perry — a case related to California's constitutional amendment initiative barring same-sex marriage. The decision effectively allowed same-sex marriages in that state to resume after the court ruled that the proponents of the initiative lacked Article III standing to appeal in federal court based on its established interpretation of the case or controversy clause.


In 2007, Edith "Edie" Windsor and Thea Spyer, residents of New York, married in Toronto, Ontario, under the provisions set forth in the Canadian Civil Marriage Act, after 40 years of romantic partnership.[6] Canada's first openly gay judge, Justice Harvey Brownstone, officiated.[7] Windsor had first suggested engagement in 1965.[8] After Spyer's death in 2009, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of her wife's estate. If federal law had recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes.[9][10] In May 2008, New York Governor David Paterson had ordered state agencies to recognize same-sex marriages performed in other jurisdictions. Some lower-level state courts had made similar rulings, but whether the state's highest court would give such a ruling the force of law, as Windsor's claim for a refund required, remained uncertain[11] and was disputed throughout her lawsuit.

Windsor at first asked several gay rights advocacy groups to represent her, but none would take the case. Finally, she was referred to Roberta Kaplan, a partner at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, who later recalled: "When I heard her story, it took me about five seconds, maybe less, to agree to represent her". Kaplan had unsuccessfully represented the plaintiffs in a 2006 case that challenged the inability of same-sex couples to marry under New York law, Hernández v. Robles.[12]

District Court[edit]

Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the American Civil Liberties Union (ACLU), filed the case in the U.S. District Court for the Southern District of New York on behalf of Windsor as executor of Spyer's estate on November 9, 2010.[13][14]

On February 23, 2011, Attorney General Eric Holder released a statement regarding two lawsuits challenging DOMA Section 3, Windsor and Pedersen v. Office of Personnel Management. It explained that the Obama administration had determined that classifications based on sexual orientation should be subject to heightened scrutiny, and therefore it could no longer defend the constitutionality of DOMA's Section 3.[15] The administration continued enforcing the law until it was declared unconstitutional by the Supreme Court.[16] On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. The Department of Justice did not oppose the motion.[17]

Windsor filed a motion for summary judgment on June 24.[18] New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011, arguing that DOMA Section 3 could not survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage."[19] On August 1, 2011, BLAG filed a brief opposing Windsor's motion for summary judgment on the grounds that sexual orientation is not subject to heightened scrutiny.[20]

On June 6, 2012, Judge Barbara S. Jones ruled that a rational basis review of Section 3 of DOMA showed it to be unconstitutional, as it violated plaintiff's rights under the equal protection guarantees of the Fifth Amendment, and ordered that Windsor receive the tax refund due to her.[21][22] Where BLAG had argued that the Spyer-Windsor marriage was not recognized by New York law at the time of Spyer's death–a prerequisite for Windsor's claim against the IRS–Jones cited the "informal opinion letters" of the state's governor, attorney general, and comptroller to the contrary along with several opinions in New York appellate courts.[21] The plaintiff said afterward: "It's thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."[23][24]

Court of Appeals[edit]

Despite its approval of the ruling, the Justice Department filed a notice of appeal on June 14, 2012 to facilitate BLAG's defense of the statute.[25] BLAG filed a motion to dismiss the DOJ's Second Circuit appeal on July 19, claiming the DOJ lacks standing because it prevailed in the District Court.[26] Meanwhile, Windsor filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit's review, citing the plaintiff's age and poor health.[27] The DOJ replied to BLAG's motion to dismiss, asserting: (1) its standing as an "aggrieved party", because the District Court's stay prevents the DOJ from taking steps to cease enforcement of Section 3 of DOMA; and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.[28]

On September 27, Chief Judge Dennis Jacobs and Judges Chester J. Straub and Christopher F. Droney heard arguments in the case.[29] On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional.[30][31] The majority opinion stated, "It is easy to conclude that homosexuals have suffered a history of discrimination." Thus they were part of a quasi-suspect class that deserves any law restricting its rights to be subjected to intermediate scrutiny. Because DOMA could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection guarantees of the Fifth Amendment.[30][32]

"Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition, but law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples." [33]

It was the first federal court of appeals decision to hold that laws that classify people based on sexual orientation should be subject to heightened scrutiny.[33][34] Like the lower court, the Second Circuit held that the Spyer-Windsor marriage was valid under New York law, citing precedents on that question from several state appellate court decisions, two of which preceded Spyer's death.[31]

Supreme Court[edit]

Photo of the steps of the United States Supreme Court building on the morning of June 26, 2013, hours before the court overturned the Defense of Marriage Act.

On September 11, 2012, following Windsor's petition for certiorari before judgment and before the Second Circuit's ruling, the Department of Justice filed its own petition for certiorari before judgment with the Supreme Court.[35] After the appellate ruling on October 18, the parties filed supplemental briefs.[36] On December 7, the Supreme Court granted certiorari in the case, now United States v. Windsor, accepting the DOJ's petition.

In addition to the question presented by the DOJ – "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection" for same sex partners – the court also asked the parties to brief and argue two other questions: whether the government's agreement with the Second Circuit's decision deprived the court of a "real dispute" and therefore of jurisdiction to hear the case, and whether BLAG had standing in its own right, i.e., the legal right to independently ask for the appeal to be heard in the event that the government was not a valid petitioner. Article III of the Constitution (the "Case or Controversy clause") forbids parties that do not themselves have a real and personal ("particularized") complaint from filing a case or appeal in a federal court.[37] A finding that the government lacked a "real" complaint because of its approval of the prior ruling and that BLAG lacked legal standing to appeal separately, would have automatically led to the appeal being dismissed, as ultimately happened in the parallel same-sex marriage case Hollingsworth v. Perry.

Windsor noted in a statement that when she and her partner met nearly 50 years prior that they both never dreamed their marriage would land before the Supreme Court "as an example of why gay married couples should be treated equally, and not like second-class citizens." Noting that her deceased wife would be proud, Windsor added, "The truth is, I never expected any less from my country."[38]

On December 11, the Supreme Court appointed Vicki C. Jackson, a professor of constitutional law at Harvard Law School, as an amicus curiae to argue the two additional questions it posed.[39] BLAG also filed its own petition for certiorari,[n 4] in order to enable the court to rule on the constitutionality of DOMA, even if it were to decide that it lacked jurisdiction to hear the DOJ's petition.[40] The Supreme Court heard oral arguments on March 27, 2013.[41]

Opinion of the Court[edit]

Majority opinion[edit]

In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA (codified at 1 U.S.C. § 7) to be unconstitutional,[1][2][3][42] "as a deprivation of the liberty of the person protected by the Fifth Amendment".[5]:25[43] The Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently than state-sanctioned same-sex marriages, and that such differentiation "demean[ed] the couple, whose moral and sexual choices the Constitution protects."[44] Justice Anthony Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.[45] Kennedy's decision to strike down a central part of DOMA cited the principles of state autonomy, equal protection and liberty,[45] but the constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process.[2]

The Court wrote:[46]

Justice Kennedy, the author of the Court's opinion.

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S. 497 (1954).[47]

When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits.[48]

DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,[49] ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.[50]

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.[51] ... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations.[52] ... It forces them to follow a complicated procedure to file their state and federal taxes jointly.[53] ... It prohibits them from being buried together in veterans' cemeteries.[54][55]

For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer,"[56] ... with the intent to influence or retaliate against that official.[57] ... Although a "spouse" qualifies as a member of the officer's "immediate family,"[58] ... DOMA makes this protection inapplicable to same-sex spouses.[59]

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws which equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for 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. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.[60]


Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito authored dissenting opinions, which Justice Clarence Thomas joined.[61]

Justice Scalia's dissent, which was joined in full by Justice Thomas and in part by Justice Roberts,[62] opens as follows:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

Justice Scalia, the author of one of the three dissenting opinions.

He continues:

Windsor's injury was cured by the judgment in her favor. [...] What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.

Scalia wrote in his dissent that the majority justices, through their opinion, resorted to calling opponents of same-sex marriage "enemies of the human race".[63]

He argues that the Court's ruling would impact state bans on same-sex marriage as well, writing:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.[64]

In his concluding paragraph, Scalia wrote that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat." [5]

The opinions of Roberts and Scalia offered different interpretations of the majority ruling. Roberts felt that the majority opinion was based on federalism, finding DOMA unconstitutional because the federal government was interfering with state control of marriage. He wrote: "The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area 'central to state domestic relations law applicable to its residents and citizens' is sufficiently 'unusual' to set off alarm bells.... [I]ts judgment is based on federalism."[5] Scalia was uncertain whether the majority relied upon that federalism argument or based its decision on Equal Protection grounds, writing, "if this is meant to be an equal-protection opinion, it is a confusing one."[5]

Responses and analysis[edit]

Presidential response[edit]

After the decision was announced, President Obama hailed the ruling as a "victory for American democracy". On the question of how the ruling would affect bans on same-sex marriage in those states that prohibit it, Obama said: "My personal belief, but I'm speaking now as a president as opposed to as a lawyer, is that if you've been married in Massachusetts and you move someplace else, you're still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple".[65]

Legal response[edit]

Laurence Tribe, a professor of constitutional law at Harvard Law School, described Scalia's response and dissent as "intemperate", "extraordinary", and "at the very least, an exercise in jurisprudential cynicism". He considered that Scalia appeared to have been unable to resist "the temptation to use the occasion to insult the Court's majority, and Justice Kennedy in particular, in essentially ad hominem...terms." Tribe wrote "principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent". In his analysis, he comments that Scalia opined "about how the Court should have decided the very controversy that he says wasn't really before it", that "To accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah", and that "Scalia didn't so much as consider the possibility ... that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3." He concluded that in making his predictive statement about the future precedent of the case, "Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist".[66] It is noteworthy, however, that a number of commentators now agree that Justice Scalia's legal foresight was largely correct; that the Court's ambiguity surrounding the legal standard of review it chose to apply, in an attempt to leave the question of the constitutionality of state laws against same-sex marriage for another day, has opened the door for federal judges around the country to strike down existing state marriage laws as unconstitutional.[67][68][69]

Neil Siegel, a professor of constitutional law at Duke Law School, wrote that Justice Roberts' dissent relying on federalism was a fallacy in that the majority did not place any weight in the federalism argument, but rather used "federalism as a waystation" to put off making a decision on the constitutionality of state laws concerning same-sex marriage.[70]

Subsequent developments[edit]

A day after the decision in Windsor, the federal judge hearing McLaughlin v. Panetta asked the parties to explain by July 18 why the logic that found DOMA's section 3 unconstitutional did not apply equally to federal regulations that control eligibility for veterans' spousal benefits, which define "spouse" as "a person of the opposite sex."[71] On July 18, 2013, BLAG stated in a court filing that in light of Windsor, they would no longer seek to defend this case or similar statutes in court, and sought leave to withdraw from defending the case.[72]

In September 2013, a New Jersey judge ruled that the state's refusal to issue same-sex marriage licenses contradicted Windsor.[73] Governor Chris Christie dropped his appeal of this ruling in October 2013 after the State Supreme Court signaled that they were likely to reject his appeal, making New Jersey the 14th state in the union to permit gay marriage.[74]

Following the Supreme Court's decision in Windsor and the New Mexico Supreme Court's ruling in Griego v. Oliver holding that marriage licenses must be issued to couples without respect to gender[75] four United States District Court judges (see Kitchen v. Herbert,[76] Bishop v. Oklahoma,[77] Bostic v. Rainey,[78] and De Leon v. Perry[79]) interpreted the Windsor decision as meaning that state laws defining marriage as one man and one woman are likewise unconstitutional.[80] In December 2013, a U.S. District Court judge for example ruled in Kitchen v. Herbert that Utah's prohibition of same-sex marriage was unconstitutional, citing Windsor to support his findings with respect to Baker v. Nelson and equal protection.[81]

A 3-judge panel of the Ninth Circuit Court of Appeals in SmithKline Beecham v. Abbott (Case 11-17357, Case ID:8944502) resolved a dispute between the two pharmaceutical companies SmithKline Beecham and Abbott Laboratories whether gay people could be kept off a jury in a trial involving HIV drugs. It ruled unanimously on January 21, 2014, that, based on its reading of the U.S. Supreme Court decision in United States v. Windsor, distinctions based on sexual orientation are subject to the "heightened scrutiny" standard of review and that "equal protection prohibits peremptory strikes based on sexual orientation".[82] The decision was not appealed.[83]

The Ninth Circuit looked at the Windsor decision and ruled that the Supreme Court applied heightened scrutiny, without naming it directly: “Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”[82] The Windsor Court, the opinion noted, reviewed the actual purposes and justifications for the law i.e. Section 3 of the federal Defense of Marriage Act (DOMA) and not under the more lenient rational basis standard where any conceivable rationale is enough to sustain a law. The Ninth Circuit court also observed that the Windsor Court shifted the burden from the same-sex couple to the government when it wrote that the government has to “justify disparate treatment of the group.”[84] In sum the Ninth Circuit concluded: "In sum, Windsor requires that we reexamine our prior precedents, and Witt tells us how to interpret Windsor. Under that analysis, we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection."[82] In holding that heightened scrutiny is required for classifications based on sexual orientation within the Ninth Circuit the court in SmithKline Beecham v. Abbott handed down a ruling whose underlying rationale could have broad implications outside of the case with respect to “the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans,” Human Rights Campaign President Chad Griffin said in a statement.[83][84]

Ruling implementation by the Obama administration[edit]

In the wake of the U.S. Supreme Court ruling the Obama Administration and several federal executive departments and agencies like the Office of Personnel Management[85] began to extend federal rights, privileges and benefits to married same-sex couples by changing regulations in order to conform with the Supreme Court decision in Windsor:

As a result of the Windsor decision, married same-sex couples—regardless of domicile—have tax benefits (which include the previously unavailable ability to file joint tax returns with the IRS), military benefits, federal employment benefits for employees of the U.S Government and immigration benefits.[94][95][96][97] In February 2014, the Justice Department expanded recognition of same-sex marriages in federal legal matters, including bankruptcies, prison visits, survivor benefits and the legal right to refuse to testify to incriminate a spouse.[98][99] Likewise in June 2014, family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples in all of the U.S.[100][101] With respect to social security and veterans benefits, same-sex married couples who live in states where same-sex marriage is recognised are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA). The VA and SSA can provide only limited benefits to married same-sex couples living in states where same-sex marriage isn't legal, with Congress required to amend federal law to rectify that inequity.[101][102][103]

According to one reporter's assessment in August 2013, despite the foregoing efforts the U.S. federal agencies are not working in concert with respect to the implementation of the Windsor ruling. Instead "they are creating a patchwork of regulations affecting gay and lesbian couples — and may be raising questions about discrimination and fairness in the way that federal benefits are distributed."[86]

See also[edit]


  1. ^ Gill and Massachusetts were decided in separate opinions in the District Court by the same judge on the same day and a single opinion in the Court of Appeals, which found Section 3 unconstitutional. Three petitions for certiorari were filed (docket numbers 12–13, 12–15, and 12–97); all were dismissed the day after the Windsor decision was announced filed, with Justice Kagan recusing.
  2. ^ a b Golinski and Pedersen are both cases in which district courts held Section 3 of DOMA unconstitutional, though instead of appealing to the Courts of Appeal, an appeal was filed directly with the Supreme Court (docket numbers 12–16 and 12-231). The Supreme Court declined the petitions the day after Windsor was announced, with Justice Kagan recusing in Golinski.
  3. ^ The Court of Appeals for Veterans Claims stayed Cardona, which challenges the constitutionality of section 3 of DOMA and certain federal regulations, pending resolution of Windsor.
  4. ^ Bipartisan Legal Advisory Group of the United States House of Representatives v. Windsor, Docket No. 12-785, (U.S. Supreme Court, December 28, 2012).


  1. ^ a b Pete Williams and Erin McClam (June 26, 2013). "Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California". NBC News. Retrieved June 29, 2013. 
  2. ^ a b c Liptak, Adam (June 26, 2013). "Supreme Court Bolsters Gay Marriage With Two Major Rulings". The New York Times. Retrieved June 29, 2013. 
  3. ^ a b Mears, Bill (June 27, 2013). "Supreme Court strikes down federal provision on same-sex marriage benefits". CNN. Retrieved June 29, 2013. 
  4. ^ "Complaint: Windor v. United States". aclu.org. p. 21. Retrieved June 27, 2013. 
  5. ^ a b c d e United States v. Windsor, 570 U.S. ___ (June 26, 2013), (Docket No. 12-307). Retrieved June 26, 2013.
  6. ^ Shapiro, Lila (July 16, 2012). "Edie Windsor vs. DOMA: 83-Year-Old Lesbian Petitions U.S. Supreme Court To Hear Case". The Huffington Post. Retrieved July 30, 2012. 
  7. ^ "Thea Spyer and Edith Windsor". The New York Times. May 27, 2007. Retrieved January 1, 2013. 
  8. ^ Neumeister, Larry (December 30, 2012). "NY Plaintiff: Gay Benefits 'Bigger Than Marriage'". ABC News. Associated Press. Retrieved December 31, 2012. "It was not until the spring of 1965 that they got together. Windsor suggested they date for a year and consider engagement for another year if that went well." 
  9. ^ Schwartz, John (November 8, 2010). "Gay Couple to Sue over U.S. Marriage Law". The New York Times. Retrieved July 16, 2012. 
  10. ^ Johnson, Chris (November 9, 2010). "Two New Lawsuits Target DOMA". Washington Blade. Retrieved July 16, 2012. 
  11. ^ Peters, Jeremy W. (May 29, 2008). "New York to Back Same-Sex Unions From Elsewhere". New York Times. Retrieved July 20, 2013. 
  12. ^ Applebome, Peter (December 10, 2012). "Reveling in Her Supreme Court Moment". The New York Times. Retrieved December 13, 2012. 
  13. ^ Windsor v. United States, Complaint. Retrieved March 1, 2011.
  14. ^ Geidner, Chris (November 8, 2010). "Double Dose of DOMA Challenges". MetroWeekly. Retrieved July 18, 2013. 
  15. ^ "Statement of the Attorney General on Litigation Involving the Defense of Marriage Act" (Press release). United States Department of Justice. February 23, 2011. Retrieved February 23, 2011. 
  16. ^ "GLAD Statement on DOJ's Announcement It Won't Defend Constitutionality of DOMA in Pedersen". Gay & Lesbian Advocates & Defenders (GLAD). February 23, 2011. Retrieved February 23, 2011. 
  17. ^ Geidner, Chris (April 18, 2011). "House Leadership Seeks to Intervene in DOMA Case". Metro Weekly. Retrieved April 19, 2011. 
  18. ^ Memorandum in Support of Plaintiff's Motion for Summary Judgment. Metro Weekly. June 24, 2011. Retrieved August 3, 2011. 
  19. ^ Geidner, Chris (July 26, 2011). "New York Attorney General Takes Edith Windsor's Side in DOMA Challenge". Metro Weekly. Retrieved July 26, 2011. 
  20. ^ Geidner, Chris (August 2, 2011). "House GOP Leaders Say Court Should Dismiss Edith Windsor's Lawsuit, Find DOMA Constitutional". Metro Weekly. Retrieved August 2, 2011. 
  21. ^ a b Windsor v. United States, F. Supp. 2d 394 (S.D.N.Y 2012).
  22. ^ Katz, Basil (6 June 6, 2012). "Defense of Marriage Act Unconstitutional: Judge". Reuters. Retrieved December 10, 2012. 
  23. ^ Geidner, Chris (June 6, 2012). "Another Federal Judge Finds DOMA Marriage Definition Unconstitutional, Now in Widow's Case". Metro Weekly. Retrieved June 6, 2012. 
  24. ^ Dwyer, Jim (June 7, 2012). "She Waited 40 Years to Marry, Then When Her Wife Died, the Tax Bill Came". The New York Times. Retrieved June 8, 2012. 
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  50. ^ Windsor, 570 U.S., at 22–23 (slip op.).
  51. ^ See 5 U.S.C. § 8901(5), 8905.
  52. ^ See 11 U.S.C. § 101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15).
  53. ^ Technical Bulletin TB–55, 2010 Vt. Tax LEXIS 6 (October 7, 2010); Brief for Federalism Scholars as Amici Curiae 34.
  54. ^ National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008).
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  56. ^ 18 U.S.C. § 115(a)(1)(A).
  57. ^ 18 U.S.C. § 115(a)(1).
  58. ^ 18 U.S.C. § 115(c)(2).
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Further reading[edit]

External links[edit]