Same-Sex Marriages and the Defense of Marriage Act (“DOMA”)

The constitutionality of the Defense of Marriage Act (“DOMA”) is being questioned.  A New York court in Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), is one of several federal courts that recently declared Section 3 of DOMA unconstitutional because it violates the equal protection clause of the Fifth Amendment to the United States Constitution.  Section 3 of DOMA states that for purposes of federal law, “marriage” is between “one man and one woman as husband and wife”.  Section 3 further defines “spouse” as “a person of the opposite sex who is a husband or wife”. 

The Windsor court stated that defining “marriage” and “spouses” as only between persons of the opposite sex has no “rational basis” to a legitimate government objective.  In other words, there is no “logical relationship” between DOMA and the following objectives, or in the alternative, the following objectives are not legitimate enough to justify DOMA: preserving the traditional institution of marriage, promoting an ideal family structure for procreation, ensuring that federal benefits are uniformly and consistently applied, or conserving government resources. 

In recent years, several states including New York have enacted laws allowing same-sex couples to legally marry.  However, under DOMA same-sex marriages are not recognized for purposes of federal law.   For estate tax purposes, Section 3 of DOMA creates a disparity in how estate tax is imposed upon same-sex versus opposite-sex married couples.  Generally, spouses are entitled to an unlimited estate tax marital deduction for property passing to a surviving spouse.  This means that, if properly structured, there is no estate tax due until both spouses have died.  This helps to ensure that surviving spouses are not required to divest their savings in order to pay taxes.  Therefore, despite being legally married in one’s state, a surviving same-sex spouse is not entitled to the federal estate tax marital deduction.  This can result in a significant amount of estate tax due upon the death of the first spouse.

DOMA not only affects estate taxes but it also affects same-sex married couples in many other capacities, such as but not limited to access to federal health insurance plans, income tax, bankruptcy, and immigration.   Several other jurisdictions have also addressed challenges to DOMA, resulting in a split of opinions as to whether Section 3 of DOMA is constitutional.  Three recent cases that also found Section 3 unconstitutional are: Pederson v. OPM, 2012 U.S. Dist. LEXIS 106713 (D. Conn., July 31, 2012); Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010), aff’d, 682 F.3d 1 (1st Cir. 2012); and Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Calif.  2012). 

These three cases involve plaintiffs who were married same-sex couples (or a surviving same-sex spouse) under their respective state’s law.  Each of the plaintiffs were either denied a lump sum death benefit payable to spouses under Social Security, denied access to a spouse’s federal employee health insurance plan, denied access to theirs spouse’s federal flexible spending plan, denied leave under the Family Medical Leave Act to care for a spouse, denied certain benefits as a spouse under Medicare Part B, or denied the right to file joint federal income tax returns. 

It is anticipated that the United States Supreme Court will soon address the constitutionality of DOMA.  As of August 2012, the parties in Golinski and Windsor had filed for a Writ of Certiorari Before Judgment with the U.S. Supreme Court, which is a request for expedited review.  If granted, these cases would skip intermediate appellate review and move directly to the highest court of the nation.  Gill is already pending in the U.S. Supreme Court. If Section 3 of DOMA is ultimately determined to be unconstitutional, then same-sex married couples will be entitled to the same benefits under federal law that opposite-sex married couples are already entitled to, including the unlimited estate tax marital deduction.