The Demise of DOMA’s Core: Employer Response Avenues in the Wake of Windsor


The Windsor Decision

On June 26, 2013, in a 5-4 decision, the United States Supreme Court issued a much anticipated ruling in United States v. Windsor,1 holding that Section 3 of the federal Defense of Marriage Act (“DOMA”) is unconstitutional on federalism and equal protection grounds. Under federal law, Section 3 of DOMA defined “marriage” as a legal union between one man and one woman as husband and wife, and “spouse” as a person of the opposite sex who is a husband or a wife. The Court’s majority reasoned that domestic relations, such as marriage, have traditionally been within the purview of the individual states and that in enacting Section 3 of DOMA, Congress exceeded its authority in contravention of federalism principles. Moreover, the Court reasoned that DOMA Section 3 “violates basic due process and equal protection principles applicable to the Federal Government” under the Fifth Amendment to the United States Constitution by seeking to injure a class of persons - lawfully married same-sex couples - that a state, through its enacted laws, had sought to protect. The Court emphasized that its holding is confined to “lawful marriages,” namely, same-sex marriages legally recognized by a state, and does not apply to civil unions or legal domestic partnerships. Therefore, after Windsor, the federal government cannot discriminate against same-sex marriages that are legal under state law. As of today, same-sex marriage is legally permitted in 13 states and the District of Columbia,2 and in these jurisdictions, federal benefits must be doled out equally for same-sex and opposite-sex couples.

Unanswered Questions after Windsor

Many questions arise as a result of the Court’s landmark ruling in Windsor. To be sure, statutes, regulations, and rules that apply to federal benefits vary depending on whether the marriages are recognized based on where the couple resides (“place of domicile”) or where the marriage took place (“place of celebration”). This distinction is largely irrelevant when a same-sex couple resides in a state that recognizes same-sex marriages because under either classification (place of domicile or place of celebration), the couple’s marriage would be recognized. However, in the 37 states that do not recognize or expressly prohibit same-sex marriages, whether by statute, constitutional amendment, or both, a difficult conflict of law question arises: must the federal government provide benefits to same-sex couples lawfully married in one state but who currently reside in a state that does not recognize their same-sex marriage? Further, Windsor did not address the constitutionality of Section 2 of DOMA, which permits a state that does not recognize same-sex marriages to disregard a lawful same-sex marriage performed in another state that does recognize same-sex marriage. Accordingly, the conflict of law question could be rephrased this way: Should the federal government use the law of the place of domicile or of the place of celebration to determine whether a same-sex couple is lawfully married, thus entitled to federal benefits? The IRS and Treasury Department have issued guidance, as discussed in more detail below, as an initial step in this direction. However, until Congress, administrative agencies, or the courts provide additional guidance, this question will remain unanswered for many purposes, and employers, in many respects, will remain in limbo. In addition to discussing the IRS and Treasury guidance, this Alert also describes some of the other current guidance and decisions that have been issued since Windsor.

To read the full alert, click on the PDF linked below.

PDF - DOMA-Windsor-Decision.pdf

For more information, please contact the Haynes and Boone attorney with whom you work or any of the following attorneys in the firm’s Labor and Employment Practice Group:

Dean J. Schaner


Scott Thompson


 Charles F. Plenge

Marilyn C. Doolittle


Susan A. Wetzel


Tiffany Walker


Kirsten H. Garcia

1 133 S. Ct. 2675 (2013).
2 Currently, same-sex marriage is legally permitted in the following states: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington.

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