United States v. Windsor

Posted on Jul 19, 2013

The 1996 Defense of Marriage Act, or DOMA, was signed into law by President Bill Clinton, barring federal recognition of same-sex marriages for purposes such as Social Security survivors’ benefits, insurance benefits, immigration and tax filing.

On June 26, 2013, the U.S. Supreme Court issued its decision in United States v. Windsor, Docket No. 12-307, which declared Section 3 of DOMA unconstitutional. Section 3 defines marriage as “a legal union between one man and one woman as husband and wife” and a spouse as “a person of the opposite sex who is a husband or a wife.” That provision had been struck down by eight lower courts before the Supreme Court’s 5-4 ruling in United States v. Windsor settled the matter for good. The court struck down the federal law because it denies same-sex couples the “equal liberty” guaranteed by the Fifth Amendment. Justice Kennedy wrote his opinion saying DOMA violates the Constitution’s equal protection clause.

This decision means that legally married same-sex couples are now entitled to the same federal benefits as married opposite sex couples. What this means for same sex couples in Texas is not entirely clear. Same sex marriages are not authorized in Texas, although they are recognized and legal in 13 other states. Will Texas residents who are married in California be recognized?

Article IV, Section 1, of the U.S. Constitution states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” While far from clear at this point, it seems likely that same sex couples who reside in Texas but were legally married in another state will be entitled to recognition as married for purposes of rights governed by federal law.

For example, it seems likely that such a couple will be treated as married for purposes of employer provided benefits like health insurance and retirement plans as well as for purposes of federal programs such as Immigration and Naturalization, Military Benefits, Veterans Benefits, Social Security and Income, Gift and Estate Tax.

However, Texas has its own version of DOMA in place. Proposition 2, added to the Texas constitution in 2005, limits marriage to one man and one woman. Consequently it seems unlikely that a legally married same sex couple will be treated as married in Texas for State law purposes. For example, will a same sex spouse have the right to be consulted regarding medical care (or even be authorized to receive information)? Will community property be accumulated during marriage by a legally married same sex couple? Will a same sex spouse be entitled to the protection of Texas homestead laws? Will a same sex spouse have any priority to be appointed executor or guardian? Will a same sex spouse be recognized as such for purposes of inheritance? Will a spouse be entitled to child support in the event of divorce?

The Supreme Court’s decision will have dramatic impact and broad repercussions. Numerous federal agencies are in the process of drafting regulations to implement Windsor. Stay tuned.

For more information on this topic, please email Scott Sherman or call him at (361) 886-3800.