The Supreme Court Strikes Down The Defense of Marriage Act – Has Little Effect On Texas

Earlier this week, in a rare move to strike down a federal law, the United States Supreme Court declared the Defense of Marriage Act (DOMA) invalid because it violated the Equal Protection and Due Process clauses of the United States Constitution. While the LGBT community has hailed the ruling in United States v. Windsor as a major victory, the Court’s decision will have very little, if any, effect on Texas (and 70% of the states that do not recognize same-sex marriages).

What is DOMA? 

Bill Clinton reluctantly signed DOMA into law in 1996.  The bill’s congressional sponsor – Don Nickles (R) – explained that DOMA’s purpose was to “to make explicit . . . that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”  Thus, while the states remained free to recognize same-sex marriages, the federal government was choosing not to do so by passing this bill. According to the U.S. General Accounting OfficeDOMA affected more than 1,138 federal statutes  “in which marital status is a factor in determining or receiving benefits, rights, and privileges.”

Why did the Supreme Court Strike Down DOMA

The Court found that DOMA was unconstitutional because it violated “basic due process” principles and inflicted an “injury and indignity” of a kind that denied “an essential part of the liberty protected by the Fifth Amendment.”  Justice Kennedy explained that the stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws” and its essence was to “interfer[e] with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power.”  Thus, DOMA ensured that if any state decided to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.  In other words, DOMA wrote “inequality into the entire United States Code.”

Notably, the Court did not discuss what level of scrutiny should have applied to DOMA (rational vs. intermediate) under the Equal Protection Clause analysis, presumably, because it had already found a Due Process violation.

Justice Scalia’s dissent forewarns that this ruling paves the way to the Supreme Court striking down the states’ bans on same-sex marriages in the foreseeable future.

What Legal Impact Does the Court’s Decision Have in Texas?

The Supreme Court made it clear in Windsor that the federal government cannot deny benefits to those same-sex couples whom a state considers to be in a valid marriage.  Texas, however, along with 70% of the states, does not recognize same-sex marriages. In 2005, Texas voters approved a proposition that amended the State Constitution (Art. I, Sec. 32) to define marriage as consisting “only of the union of one man and one woman. Moreover, Texas Family Code sec. 6.204(c) prohibits the state or any agency or political subdivision of the state from giving effect to same-sex marriages or civil unions performed in other jurisdictions. Thus, Windsor created no new rights or privileges for same-sex married couples that live in this state.  They are still not entitled to any federal benefits under DOMA

Although over the past several years, cities of San AntonioAustinFort Worth, El Paso, and Dallas, Travis, and El Paso Counties, have independently passed their own rules providing health benefits for same-sex partners of their employees, Texas Attorney GeneralGreg Abbot, recently issued a legal opinion declaring such policies unconstitutional.  He explained that if the Texas courts were to consider the constitutionality of such benefits, in his opinion, they would find that “Article I, section 32 of the Texas Constitution prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it.” The cities and counties have responded by stating that they will continue to provide benefits to domestic partners.

Without a doubt, the fight for equality between same-sex and opposite-sex married couples, will continue in Texas in the near future, fueled by the Court’s decision in Windsor.  Meanwhile, however, Texas will remain at status quo.

The Effect of DOMA in Those States That Recognize Same-Sex Marriages 

If you end up moving from Texas to a state that recognizes same-sex marriages (MassachusettsCaliforniaConnecticutIowa,VermontNew HampshireNew YorkMaineMarylandWashingtonRhode IslandDelawareMinnesota, and the District of Columbia), you can expect to receive a multitude of federal benefits that are not available in Texas, including:

1. Social Security Survivor Benefits – Partner widows and widowers will now be able to receive these benefits.

2. Immigration rights – U.S. citizens will now be able to sponsor United States residency for their partners.

3. Military Benefits – Military personnel will be able to obtain benefits for their partners, including health insurance, increased base and housing allowances, relocation assistance, and surviving spousal benefits. In fact, the Defense Department has already announced that it will immediately begin the process that will lead to providing benefits to spouses and children in same-sex marriages.

4. Federal Employees Benefits – Same sex married couples will now qualify for health insurance, pension protections, and dozens of other benefits the federal government provides to its employees and former employees and their families.  You can find the whole list of them here.  The Office of Personnel Management has already announced that it will be working closely with the Department of Justice to provide additional guidance to federal human resource officials and employees regarding the changes to come.

5.  Federal Estate Taxes – Same sex married couples can now (1) file join income tax filings; (2) receive exemptions from federal estate taxes in the future; and (3) receive refunds for federal estate taxes already paid. 26 U.S.C 2056(a).

6.  COBRA Spousal Health Benefits – employees’ partners will be eligible for the continued health insurance coverage under the employer’s group health plan.  COBRA requires private employers with 20 or more employees to offer continued group coverage for a defined period to employees and their covered dependents under certain circumstances, including termination of employment and divorce.

7. Employer-Provided Health Benefits – Until now, the value of health benefits provided by employers to employees’ partners was treated as income and subject to federal income tax.  This is no longer true.

8.  Gift Tax – Same-sex couples will now be exempt from gift tax when transferring assets to each other.  Under DOMA, any gift between same-sex spouses of more than $14,000 began adding up to a lifetime limit of $5.25 million — after which a 40% tax was assessed.  They will no longer be subjected to this tax.

9.   Hundreds of other benefits that until now have been available only to married couples of opposite sex and have been denied to same-sex married couples.

UPDATE (8/29/2013):  On August 29, 2013, the U.S. Department of the Treasury and the Internal Revenue Service issued Revenue Ruling 2013-17, which states that a same-sex couple legally married in any jurisdiction will be recognized as spouses by the IRS for federal tax purposes even if the couple resides in a jurisdiction that does not recognize the validity of their marriage.  This Ruling confirms, however, that unmarried domestic partners and civil union partners will not be recognized as married for federal tax purposes, whether the partners are the same or opposite sex.

UPDATE (9/27/2013)On September 18, 2013, the U.S. Department of Labor (DOL) issued a Technical Release No. 2013-04 that provides a guidance to employee benefit plans, plan sponsors, plan fiduciaries, and plan participants and beneficiaries on the definition of “spouse” and “marriage” under ERISA and the U.S. Supreme Court’s decision in United States v. Windsor. Consistent with the IRS Ruling, the Release defines “spouse” to include any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  His practice includes commercial, intellectual property and employment litigation.  You can contact her directly at or (214) 722-7108.

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