When same-sex marriage was approved in the District of Columbia, the DC Marriage Bureau had to change its preprinted forms from asking for the name of the “bride and groom” to the name of each “spouse.” And officers performing marriage ceremonies changed “I now pronounce you husband and wife” to “I now pronounce you legally married.”

As of August 2013, there are fourteen jurisdictions that allow same-sex couples to marry in the United States. They are California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. There are twenty-nine states that have constitutional provisions prohibiting same-sex marriages and six states that prohibit it by statute.

Colorado, Hawaii, Illinois, New Jersey, Nevada, Oregon, and Wisconsin have created legal unions for same-sex couples. They are similar but not equal to the marriage laws of those jurisdictions.

Opposition

Opponents of same-sex marriage have attempted to pass an amendment to the Constitution of the United States to define marriage as a union between one man and one woman. The Federal Marriage Amendment, prohibiting states from recognizing same-sex marriages, was approved by the Senate Judiciary Committee in 2006. It was debated in the US Senate, but ultimately defeated in both houses of Congress.

Opponents of same-sex marriage base their arguments on concerns that same-sex marriage partners are not fit parents. They also cite religious convictions that are opposed to same-sex marriages. Finally, they are concerned that broadening the traditional definition of marriage would eventually lead to the inclusion of incest or polygamy.

The Defense of Marriage Act

The Defense of Marriage Act (DOMA)was enacted by Congress in 1996. It declared that marriage is between a man and a woman only. This prevented the federal government from recognizing same-sex marriages or providing the same federal benefits to same-sex couples that were available in heterosexual marriages. It also allowed each state to refuse to recognize same-sex marriages performed in other states.

Edith and Thea

Edith Windsor and Thea Spyer had lived together in a romantic relationship for forty years and they wanted to get married in 2007. The only problem was that they were both women and they lived in New York. New York did not permit same-sex marriages in 2007.

So they got married in Canada, where same-sex marriages were legal.

In 2009, Spyer died, leaving her estate to Windsor. The federal estate taxes were $363,053, but there is an exemption for surviving spouses.

The IRS said that the exemption was not available in same-sex marriages. It found that Windsor did not meet the definition of a spouse under DOMA and denied her claim.

Windsor paid the tax and filed suit against the United States for a refund on November 9, 2010, in New York. The lawsuit claimed that DOMA treated legally married same-sex couples differently than other similarly situated couples without justification.

The US District Court in New York ruled on June 6, 2012, that section 3 of DOMA was unconstitutional and that it violated the due-process clause of the Fifth Amendment. The judge ordered the tax refund to be paid to Windsor plus interest. The US Second Circuit Court of Appeals affirmed.

The Justice Department and a group called Bipartisan Legal Advisory Group appealed the case to the US Supreme Court. On June 26, 2013, in a 5–4 decision, the US Supreme Court held that section 3 of DOMA was unconstitutional in United States v. Windsor. The majority opinion said:

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency . . . . By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Besides this section, the rest of DOMA remains intact, including section 2, which provides that states do not have to recognize valid marriages between same-sex couples from other states. However, the Windsor decision provides ammunition for legal challenges in those states. Cases have already been filed in New Mexico, Michigan, New Jersey, Arkansas, and Oklahoma.

Kristin and Sandra

In May 2008, the California Supreme Court held that state laws limiting marriage to opposite-sex couples were unconstitutional. However, in November 2008, the California electorate voted in adopt Proposition 8, a constitutional amendment prohibiting same sex-marriages. On May 26, 2009, the California Supreme Court upheld Proposition 8.

In May 2009, Kristin Perry and Sandra Stier applied for a marriage license in Alameda County, California. It was denied by the clerk-registrar because they are a same-sex couple. Paul Katami and Jeffrey Zarillo were denied a marriage license for the same reason in Los Angeles County. Both couples sued the county clerk and other government officials they were involved with.

Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to defend the suit. The official proponents of Proposition 8, www.ProtectMarriage.com, led by then-Senator Dennis Hollingsworth, proceeded with the case, taking it all the way to the US Supreme Court.

In 2013, on the same day as the Windsor decision, the US Supreme Court, in Hollingsworth v. Perry, issued a 5–4 opinion ruling that Hollingsworth was not the proper party to bring the appeal on behalf of the state of California. This decision allowed same-sex marriages to resume in California. Kristin and Sandra are now legally married.

Divorce for Same-Sex Couples

In states that permit same-sex marriages, divorce for same-sex couples is the same as divorce for heterosexual couples. The same laws, rules, and procedures that have been discussed in previous chapters apply to divorce for same-sex marriages. The courts will have to work out some of the details. For example, in states where adultery is grounds for divorce, what is the definition of adultery for a same-sex couple?

In states that do not recognize same-sex marriages, it is difficult if not impossible to obtain a same-sex divorce. Arizona, New Mexico, and Wyoming are exceptions. They do not have same-sex marriage but do permit same-sex couples to divorce.

If a same-sex couple has no way to divorce, they can still split up their assets with an agreement, but if they cannot agree on how to do so, they will have to ask the court to divide them in a civil lawsuit.

Delaware, Minnesota, and DC gave their courts the right to grant same-sex divorces to same-sex couples who were married in those jurisdictions but who now live in jurisdictions that don’t recognize same-sex marriages.

Rights of Same Sex-Couples

Besides the estate-tax exemption for spouses, there are 1,137 federal rights, benefits, and privileges granted to married couples by the federal government. You can see a list of them at www.hrc.org/resources/entry/an-overview-of-federal-rights-and-protections-granted-to-married-couples. Even though states that recognized same-sex marriages gave same-sex spouses equal benefits, none were previously available from the federal government, including those related to taxes, benefits, and property.

Now, as a result of the Windsor decision, same-sex couples will have these rights.

Some examples of rights for married couple that may now be available to same-sex couples include:

• If you work for the federal government, you can have your spouse covered under your health insurance.
• If you work for a state government or a private employer and you live in a state that recognizes same-sex marriages, you can have your spouse added to your benefits.
• Married couples may file joint federal tax returns, pay lower tax rates, and amend past returns accordingly for up to three years prior.
• Married couples may claim a deceased spouse’s social security benefits.
• Members of same-sex couples may be eligible to receive a refund of the capital gains taxes or estate taxes provided by these revisions retroactively.

It is not clear yet whether the federal government will retroactively apply Windsor to the date of marriage, or only prospectively.

The Social Security Administration has issued a statement that it will begin processing applications for death and retirement benefits for same-sex spouses. These benefits include: (a) the right to receive half your spouse’s benefit if it is higher than yours upon your retirement, (b) the right to receive a benefit equal to your spouse’s benefit if it is higher than yours and your spouse dies, and (c) the $250 death benefit.

The Social Security Administration is limiting applications to marriages that were performed in the state in which the higher earning spouse is living at the time of application. But this may be expanded later to spouses who were legally married whether or not they now live in a state that recognizes same sex marriages.

The IRS has issued a Guidance that says a validly married same-sex couple will be considered married for IRS purposes no matter where they live. This means that the IRS has adopted the “place of celebration” rule.

Why Windsor Is Important in Future Cases

In striking down part of DOMA, the US Supreme Court based its decision, at least in part, on the right to equal protection. That right protects certain classes from discrimination. The same argument could be applied to any state law that bars same-sex marriages.

Even Justice Scalia says in his dissent in the Windsor case:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages . . . . How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Windsor, 570 U.S. ___ (2013), (Docket No. 12-307) (Scalia, J., dissenting slip op.).

Effect on the Federal Budget

Although the Windsor decision means that more people will be entitled to receive the federal benefits for married couples, there are some disadvantages to being married. These include the so-called “marriage penalty” in taxes, which means that married couples in some brackets pay more taxes than they would if each member could file as single. Also, a married couple’s assets are included in means tests for welfare and disability assistance.

The Congressional Budget Office did a study in 2004, which estimated that legalizing same-sex marriage throughout the United States would actually improve the federal budget’s bottom line to a small extent. Government expenses for Social Security and Federal Employee Health Benefits would increase. But that would be made up for by a decrease in expenses for Medicaid, Medicare, and Supplemental Security Income.

Public Opinion

Public Policy Polling surveyed more than 1,500 Massachusetts voters in May 2013. Twenty-five percent of voters said same-sex marriage had a positive impact on their lives. Sixty percent said it had no impact. And fifteen percent said it had a negative impact.

A similar survey by Public Policy Polling in Iowa in July 2013 found that of 668 Iowa voters polled, 11 percent said same-sex marriage had a positive impact on their lives and 63 percent said it had no impact. And 26 percent said it had a negative impact.

Expansion of Same-Sex Marriage in the United States

Here is a state-by-state history showing how same-sex marriage laws have been expanding nationally.

Massachusetts.Same-sex marriage was first recognized in the United States by the Massachusetts Supreme Judicial Court in Goodridge v. Dept of Public Health on November 18, 2003. The court said:

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.

California.The Supreme Court of California issued a decision on May 15, 2008, holding that California’s statutory definition of marriage limiting it to a union between one man and one woman violated the state constitution. Voters restored the definition by approving a constitutional amendment known as Proposition 8. The US Supreme Court dismissed an appeal by supporters of Proposition 8 for lack of standing on June 26, 2013, in Hollingsworth v. Perry. This decision restored same-sex marriages in California.

Connecticut.The Connecticut Supreme Court legalized same-sex marriages when it overturned the state’s civil-unions statute on October 20, 2008. It ruled the statute was unconstitutional because it discriminated against same-sex couples.

Iowa.The Iowa Supreme Court legalized same-sex marriage in a unanimous decision in Varnum v. Brien on April 3, 2009.

Vermont. On April 7, 2009, Vermont became the first state to legalize same-sex marriage through legislation. The governor first vetoed the law, but he was overridden by the legislature.

New Hampshire. On June 3, 2009, New Hampshire became the sixth state to legalize same-sex marriage.

District of Columbia. The DC City Council passed a same-sex marriage bill and it was signed into law by the DC mayor on December 18, 2009.

New York. On July 24, 20ll, New York legalized same-sex marriages by legislation.

Washington.The first same-sex marriage licenses in Washington were issued on December 9, 2012.

Maine. Maine’s same-sex marriage law took effect December 19, 2012.

Maryland.Maryland’s same-sex marriage law took effect on January 1, 2013.

Rhode Island. Lawmakers in Rhode Island passed a bill legalizing same-sex marriage on May 2, 2013, which became effective August 1, 2013.

Delaware. Delaware’s legislature legalized same-sex marriages May 7, 2013, and the law took effect on July 1, 2013.

Minnesota. Minnesota’s legislature passed a same-sex marriage bill signed by the governor on May 14, 2013, which became effective August 1, 2013.

Summary

Divorce basically operates in the same way for same-sex couples as it does for opposite-sex couples. With the expansion of valid same-sex marriages in the United States as well as two recent US Supreme Court decisions, we will be seeing more same-sex marriage challenges to state laws and, of course, more same-sex divorces.