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On June 26, 2013, the United States Supreme Court struck down the Defense of Marriage Act (DOMA) in United States v. Windsor. DOMA, a federal law, was enacted in 1996, and it defined marriage as between a man and a woman. It also defined spouse as someone who is the opposite sex of the other spouse. As a result, DOMA essentially condemned same-sex marriage in the federal forum.

DOMA allowed the federal government to ignore marriages that were legal in the state in which the couple was married. The result, in many cases, was somewhat confusing. Take taxes for example. Where a same-sex couple could file as married in the state, and enjoy all of the tax benefits of that status, the same couple could not file as married on their federal tax return. Instead, they usually had to file as single. Single people do not get nearly as many benefits as married couples when filing their returns.

Taxes were the underlying issue in Windsor. One woman died, leaving all of her property to her wife, so the spouse had to pay an estate tax of $363,000 because federally she was not considered a spouse of the deceased woman. If she would have been a male, then she would not have to deal with the estate tax.

The Court decided the case on part federalism issues and part personal rights issues. The federalism concern stemmed from the ability of the federal government to inhibit the states from defining terms in their own laws. The states should have a right to define their own terms, and have always had a great deal of leeway in family law issues. Generally, the states are considered to be much closer to their residents and allowing some wiggle room in the area of family law allows each state to adjust their laws according to the cultural and traditional norms of that state.

The personal issue that the Court discussed is based on notions of fundamental fairness to homosexual and bisexual individuals. The Court stated that having a law that defined marriage between a male and a female discriminated against those with same-sex partners. Under the Fifth Amendment, citizens of the United States have a right to liberty, and the Court determined that defining marriage in this way was a violation of that right to liberty. It is important to note that the Court did not determine that banning same-sex marriage was unconstitutional, rather, the Court determined that defining marriage in such a particularized and discriminatory way was unconstitutional.

The LBGT community celebrated the decision to strike down DOMA, viewing it as a step toward universal gay marriage in the United States. To date, thirteen states and the District of Columbia allow same-sex marriage. Those states include: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maryland, Maine, Washington, Delaware, California, Rhode Island, and Minnesota. Most recently, a challenge to a ban on same-sex marriage was filed on July 9, 2013 in Pennsylvania, the only northeasterly state left with the ban. The attorney general of Pennsylvania has chosen not to defend the lawsuit. Cases like these may ultimately journey back up to the Supreme Court, forcing the Court to make the ultimate determination of whether banning same-sex marriage is unconstitutional.

Repealing DOMA and allowing federal recognition of same-sex marriage may have an effect on areas of family law that are not yet determined. If you have questions regarding how these changes may affect your legal needs, call McCarthy, Callas & Feeney and we would be happy to discuss your legal concerns.


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