DOMA Issues After the Passage of “US v. Windsor”

The Defense of Marriage Act (DOMA) is a federal law that gives states the choice to deny recognition of same-sex marriages performed under the laws of other states. Same-sex marriage is currently legal in 10 states; the remaining states have various alternatives on the lawfulness of same-sex unions, affecting the distribution of federal benefits for same-sex couples.

Section 3 of DOMA provides a federal definition of “marriage” as the union of a man and woman. In addition, Section 3 prohibits same-sex married couples from being acknowledged as “spouses” in terms of federal laws, for acquiring federal marriage benefits.

Earlier this summer, the constitutionality of DOMA — Section 3 in particular — was addressed in United States v. Windsor in the Supreme Court, where the plaintiff argued that the federal law encroaches on the Constitution’s equal protection clauses.

The plaintiff and her spouse were New York residents, who had legally wed in Canada. As residents of New York, their same-sex marriage was accepted under state law; however, due to Section 3, their marriage was not accepted by federal law. The federal government then taxed the plaintiff’s late spouse’s estate $363,053. If the marriage had been recognized by federal law, the estate wouldn’t be subject to taxes, and would have been authorized for a marital exemption.

In 2012, the New York Court of Appeals ruled that DOMA’s definitional section — Section 3 — was unconstitutional. More recently, the Supreme Court held that DOMA strips persons of the equal liberty protected by the Fifth Amendment.

Now that Section 3 of DOMA has been struck down, several federal benefits and protections of opposite-sex couples have been extended to same-sex couples in state-recognized marriages:

  • Taxes: The Department of Justice and IRS have ruled that same-sex couples, who have been legally married in states that acknowledge those marriages, will be taxed as married couples. This is applicable to same-sex couples who live in a state that recognizes their marriage as well as to same-sex couples who live in a state that doesn’t recognize their marriage.
  • Social Security Benefits: The Social Security Administration (SSA) now acknowledges same-sex marriages for deciding Social Security benefits.
  • Medicare: Private Medicare plan beneficiaries will now receive equal coverage for care in their spouse’s nursing home.
  • US Visas for Same-Sex Spouses: Same-sex couples’ visa applications will now be processed the same as opposite-sex couples.  Both the Department of State and the USCIS will process same sex applications and apply the same standards as would be applicable to a heterosexual marriage.
  • Benefits for Uniformed Service Members: Benefits from the Department of Defense will now apply to same-sex spouses of uniformed service members and civilian employees.
  • Benefits for Federal Employees: Benefits from the Office of Personnel Management will now apply to same-sex marriages of federal employees and annuitants.


This is a huge step towards equal application of the law and attendant benefits to same-sex couples. Many same-sex couples are returning to the US after spending years abroad with their foreign spouse. What a wonderful ending!

Read my other post on DOMA, USCIS releases FAQ on Immigration Benefits for Same Sex Marriages.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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