Unless you live under a rock, you’ve heard that yesterday, the last day of the term, the United States Supreme Court released two history-making decisions related to the rights of same sex couples to marry.  United States v. Windsor and Hollingsworth et al. v. Perry et. al. have changed the lives of many citizens of our country.  The question that remains is, just exactly HOW?

U.S. v. Windsor is the decision that answered the question: Is the Defense Of Marriage Act (“DOMA”) constiutional? DOMA basically held that the US government did not recognize same-sex marriage, regardless of where the marriage took place based upon the definition of the terms “marriage” and “spouse”.  Even if the marriage occurred in a state that recognized the right of same-sex couples to marry, DOMA trumped that right and held that in the federal government’s eyes, that marriage was invalid.

U.S. v. Windor came to the Supreme Court by way of appeals from the U.S. District Court and the Court of Appeals.  Two women were legally married in Ontario, Canada but resided in New York City.  Upon the death of one of the women, the other stood to receive the decedent’s entire estate.  Surviving spouse sought to claim the estate tax exemption for surviving spouses.  Because of DOMA, she was barred from doing so as it excludes a same-sex partner from the definition of “spouse” as used in federal statutes.  Surviving spouse paid the taxes but filed suit challenging the constitutionality of such a provision.  Both the District Court and Court of Appeals ruled that this portion of DOMA was unconstitutional.  Certiorari was granted by the US Supreme Court, who has now affirmed the lower courts’ decisions, albeit and not surprisingly by way of a divided court.

To provide a bit of background, DOMA was enacted by Congress in 1996 before any state had acted to permit same-sex marriage.  The 2 relevant sections of the Act as they pertain to this decision are: Section 2, which allows states to refuse to recognize same-sex marriages performed under the laws of other states (not challenged in U.S. v. Windsor) and Section 3, which amended the definition of “marriage” and “spouse” to exclude same-sex couples.  It is this section that the Supreme Court struck down as unconstitutional.  Currently, a bill known as the Respect for Marriage Act is working its way through Congress and would repeal DOMA.

Back to my original question of HOW U.S. v. Windsor will impact same-sex couples in NJ.  For one, they will now be recognized as married and spouses under federal law.  That should grant them the same tax treatment as heterosexual married couples.  It should also provide them with the same Social Security, pension, healthcare benefits and family medical leave benefits as heterosexual married couples.  Click here for more specific information on these issues.   The challenge still faced by same-sex couples who reside in NJ is Section 2 of DOMA, whereby states can refuse to recognize same-sex marriages performed under the laws of other states.  Just yesterday, Gov. Chris Christie indicated that he felt the decision was wrong, which further supports his actions last year whereby he vetoed a bill that would have legalized same-sex marriage in our state. This leaves same-sex couples in NJ in limbo despite the history making decision of U.S. v. Windsor.  While they are free to marry in other states that recognize same-sex marriage, NJ is not required to recognize this marriage, thereby NJ same-sex couples are not allowed access to certain rights (tax-wise, healthcare, etc.) that should otherwise be afforded to them.

This is only the first step in the Supreme Court’s impact in striking Section 3 of DOMA down as unconstitutional.  More will come as states digest this decision and lawmakers decide where they will stand.

Sandra C. Fava, Partner, Fox Rothschild LLPSandra C. Fava is a partner in the firm’s Family Law Practice, resident in its Morristown, NJ office. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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