London, 5 July 2013

On 26 June 2013, the US Supreme Court (the Court) in United States v Windsor, Executor of the estate of Spyer, et al., by a five to four majority, struck down as unconstitutional section 3 of the Defense of Marriage Act (DOMA), a federal law which defines marriage as excluding same-sex couples. The Court held that this amounted to a breach of the rights of same-sex married couples to equal liberty under the Fifth Amendment to the Constitution. The decision ensures that spouses who have lawfully entered into same-sex marriages are entitled to the same tax and other fiscal benefits as different-sex married couples.

The case was brought by Ms Windsor, the surviving spouse of a same-sex marriage with Ms Spyer. The couple’s marriage took place in Canada and was recognised in the State of New York. When Ms Spyer died in 2009 she left her entire estate to Ms Windsor. Ms Windsor was prevented from receiving the US federal estate tax exemption for surviving spouses because section 3 of DOMA defines “marriage” and “spouse” as excluding same-sex couples. Ms Windsor paid the tax but brought a claim seeking reimbursement, on the basis that section 3 violated the Fifth Amendment equal protection principles. While the case was pending, the Department of Justice decided not to defend the constitutionality of section 3 of DOMA but the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) intervened in the litigation to do so.

The District Court ruled against the United States, finding section 3 of DOMA to be unconstitutional and ordering the Treasury to refund Windsor’s tax with interest, a decision which was then upheld by the Court of Appeals. The decision was appealed to the Supreme Court.

In a strong majority opinion the Court found that the principal purpose and effect of DOMA was to “demean those persons who are in a lawful same-sex marriage”, the very class of people that New York had sought to recognise and protect by giving them the right to marry. The Act identified and made unequal a “subset of state-sanctioned marriages”, and was both seeking to and in fact providing a disadvantage, separate status and stigma to those who entered into same-sex marriages. In so doing, DOMA violated “basic due process and equal protection principles applicable to the Federal Government” interfering with the equal dignity of same-sex marriages.

ERT welcomes the decision and hopes that individual States which have not yet done so will now take steps to legalise same-sex marriage.

To read ERT’s case summary click here

To read the US Supreme Court’s judgment click here