The U.S. Supreme Court has
upheld a lower court decision declaring Section 3 of the Defense of
Marriage Act ("DOMA") unconstitutional.
Section 3 of DOMA, defines
"marriage," for most federal purposes, as "a legal
union between one man and one woman as husband and wife." It
goes on to state that "the word 'spouse' refers only to a person
of the opposite sex who is a husband or a wife."
The case, United States
v. Windsor, involved a same sex couple who married in Canada and
lived in New York, which recognizes the validity of same-sex
marriages from other jurisdictions. Later, one of the partners died,
leaving her entire estate to the survivor. If the federal government
had recognized this marriage, the estate would have been exempted
from any federal estate tax because the survivor would be a
"surviving spouse." However, because of DOMA, the marriage
was not recognized. Since the survivor was not considered to be a
surviving spouse, an estate tax of $363,053 was assessed. The
survivor challenged the tax, claiming that DOMA violates the
constitutional guarantee of equal protection.
In a five-to-four decision,
the Supreme Court noted that "regulation of domestic relations
is an area that has long been regarded as a virtually exclusive
province of the States." It went on to say that "when the
State used its...authority to define the marital relationship [to
include same-sex marriage], its role and its power in making the
decision enhanced the recognition, dignity and protection of the
class in their own community....DOMA operates to deprive same-sex
couples of [these] benefits and responsibilities and...seeks to
injure the very class New York seeks to protect. By doing so it
violates basic due process and equal protection principles applicable
to the Federal government."
It concluded that
"though Congress has great authority...it cannot deny the
liberty protected by the Due Process Clause of the Fifth
With this decision, it
appears that same-sex couples in states that recognize such marriages
will obtain marriage-based federal rights and benefits, including
rights to: COBRA continuation; HIPAA Special Enrollments; and
cafeteria plan pre-tax contributions and status change events.
Employees with same-sex spouses will not be subject to imputed income
on the value of their spouses' group health care coverage. Also,
same-sex spouses will be entitled to certain Social Security and
Still, many questions
remain. For example, the Supreme Court did not rule on the validity
of Section 2 of DOMA, which gives individual states the right to
recognize, or not recognize, same-sex marriages of other states.
Unless Section 2 of DOMA is also declared unconstitutional, the
conflict between state and federal law could become problematic. For
example, if same-sex married couples move to states that do not
recognize same sex marriages, they might not be entitled to the same
rights and benefits, since, under their new state's laws, they are
not married and would not be "spouses" as defined by the
Another question to be
considered is whether this ruling would be considered to create a
"status change event" under the cafeteria plan rules which
would enable a participant to make mid-year pre-tax election changes
with regards to their newly-recognized spouses.
There is also the question
of whether the ruling will be considered retroactive. This could
affect, among other many things, taxation of health care coverage and
cafeteria plan contributions from previous years.
As the Supreme Court
decision pointed out, "DOMA's sweep involves over 1,000 federal
statutes and a myriad of federal regulations." No doubt, it will
take many agency rulings and, no doubt, many court cases, before all
of the issues can be resolved.