Same-Sex Marriage Recap: Where Things Stand Starting 2014

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In June 2013, the U.S. Supreme Court decided United States v. Windsor: a landmark case in which the federal Defense of Marriage Act (DOMA), Section 3 was deemed unconstitutional.

In a nutshell, the DOMA, Section 3 specifically mandated that no federal entity could recognize a marriage between two persons of the same sex; in doing so, it prohibited same-sex couples from enjoying certain federal benefits, including tax, Social Security, and Medicare benefits, which are available to opposite-sex, married couples.

Ms. Windsor filed her case challenging Section 3 of DOMA after she was hit with $363,000 in federal estate taxes after the death of her wife (Ms. Windsor and her wife were legally married in Canada in 2007). An opposite sex married couple would have avoided a similar estate tax burden and the tax liability. Ms. Windsor sued the government and, after making it to the U.S. Supreme Court, the DOMA, Section 3 ban on federal recognition of same sex marriage was struck down.

United States v. Windsor was a huge step toward equalizing the availability of federal benefits for same sex married couples; however, there are a number of implications for same sex married couples depending on where they live and where they were married. For example, Oregon allows registered domestic partnerships for same-sex couples, but the Oregon Constitution specifically bans same sex marriage. Additionally, the Windsor case does not compel states to recognize same sex marriage thanks to Section 2 of DOMA which reserves states that right. However, in October 2013, the Oregon Attorney General’s office issued a legal opinion that Oregon state agencies can now recognize same sex marriages that were performed in other jurisdictions.

Given the current disparity in the status and treatment of same sex marriage from state to state, it will be important for same sex married couples to conduct a review of what benefits they may be entitled to. This is important when you consider that there are over 1,000 benefits, rights, privileges, and obligations for spouses of federal employees (2004 Government Accountability Office figure). Additionally, certain federal agencies interpret eligibility for benefits based on what state law says about marriage.

For individuals trying to determine what benefits are available to them, the goal posts are still shifting, so employing the assistance of experts in federal benefits is advisable. It is anticipated that clarity and consistency will eventually win out, but for now, this is a complex area where federal law and state law intermingle with sometimes contradictory directives.