Same-Sex Marriage: A Legal Background After United States v. Windsor

Same-Sex Marriage: A Legal Background After United States v. Windsor

Same-Sex Marriage: A Legal Background
After United States v. Windsor
Alison M. Smith
Legislative Attorney
October 10, 2014
Congressional Research Service
7-5700
www.crs.gov
R43481

Same-Sex Marriage: A Legal Background After United States v. Windsor

Summary
The issue of same-sex marriage generates debate on both the federal and state levels. Either
legislatively or judicially, same-sex marriage is legal in more than a dozen states. Conversely,
many states have statutes and/or constitutional amendments limiting marriage to the union of one
man and one woman. These state-level variations raise questions about the validity of such unions
outside the contracted jurisdiction and have bearing on the distribution of state and/or federal
benefits. As federal agencies grappled with the interplay of the Defense of Marriage Act (DOMA)
and the distribution of federal marriage-based benefits, questions arose regarding DOMA’s
constitutionality and the appropriate standard (strict, intermediate, or rational basis) of review to
apply to the statute.
In United States v. Windsor, a closely divided U.S. Supreme Court held that Section 3 of DOMA,
which prohibited federal recognition of same-sex marriage, violated due process and equal
protection principles. As such, federal statutes that refer to a marriage and/or spouse for federal
purposes should be interpreted as applying equally to legally married same-sex couples
recognized by the state. However, the Court left unanswered questions such as (1) whether same-
sex couples have a fundamental right to marry and (2) whether state bans on same-sex marriage
are constitutionally permissible.
In the aftermath of the Windsor decision, lower federal courts have begun to address the
constitutionality of state statutory and constitutional bans on same-sex marriage. To date,
appellate courts in the Fourth, Seventh, Ninth and Tenth Circuits have upheld lower courts’
decisions striking down such bans. The Fourth and Tenth Circuit Courts have concluded that the
bans in three states (Utah, Oklahoma, and Virginia) violate both the equal protection and due
process guarantees of the Fourteenth Amendment by impermissibly infringing on the fundamental
right to marry. Relying on a series of “marriage” cases, these courts have taken a broad or
expansive view of the fundamental right to marry and found that this right encompasses same-sex
marriage and the recognition of these unions across state lines. While district courts were split as
to the appropriate level of judicial review, both appellate courts concluded that strict scrutiny is
appropriate as a fundamental right is implicated.
Although arriving at the same result as its sister circuits—striking down same-sex marriage bans
(Indiana, Wisconsin, Idaho and Nevada)—the Seventh and Ninth Circuits took a different
approach. They declined to address the issue of whether the fundamental right to marry
encompasses same-sex unions. Instead, they limited their analysis to the equal protection
challenge. The courts concluded that discrimination based on sexual orientation warrants
heightened scrutiny and that the states’ proffered justifications failed to further any legitimate
purpose.
Appeals are pending in other circuits. The Sixth Circuit held oral arguments concerning the
constitutionality of four states’ (Kentucky, Michigan, Ohio, and Tennessee) bans. Some
commentators believe that there is a possibility that the Sixth Circuit may uphold one or more of
these bans. Recently, the Supreme Court denied review of petitions from the Fourth, Seventh, and
Tenth Circuits (covering Indiana, Oklahoma, Utah, Virginia, and Wisconsin). It remains uncertain
whether the U.S. Supreme Court will decline to intervene until a circuit split occurs.

Congressional Research Service

Same-Sex Marriage: A Legal Background After United States v. Windsor

Contents
Introduction ...................................................................................................................................... 1
General Constitutional Principles .................................................................................................... 1
Equal Protection ........................................................................................................................ 1
Substantive Due Process (Right to Privacy) .............................................................................. 2
United States v. Windsor: The Challenge to the Federal Defense of Marriage Act.......................... 3
Post-Windsor Litigation ................................................................................................................... 5
Implications ..................................................................................................................................... 7
Conclusion ....................................................................................................................................... 7

Contacts
Author Contact Information............................................................................................................. 8

Congressional Research Service

Same-Sex Marriage: A Legal Background After United States v. Windsor

Introduction
The recognition of same-sex marriage generates debate on both the federal and state levels. Either
legislatively or judicially, same-sex marriage is legal in more than a dozen states and the District
of Columbia.1 Conversely, many states have statutory2 or constitutional prohibitions3 against
same-sex marriage. Courts are beginning to address the constitutionality of these “defense of
marriage” laws using equal protection and due process analysis. In United States v. Windsor,4 the
U.S. Supreme Court struck down the federal ban on benefits for legally married same-sex
couples. However, the Court indicated that it was taking no position on a state’s authority to
forbid same-sex marriages. Lower courts have interpreted Windsor broadly and have found such
bans to violate equal protection and due process principles.
General Constitutional Principles
Equal Protection5
The Fourteenth Amendment provides, in relevant part, that “[n]o State shall ... deny to any person
within its jurisdiction the equal protection of the laws.”6 Under the Supreme Court’s equal
protection jurisprudence, “the general rule is that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a legitimate state
interest.”7 Laws based on suspect classifications such as race or gender, however, typically
receive heightened scrutiny and require a stronger, if not compelling, state interest to justify the
classification.
Traditionally, courts have not considered sexual orientation to be a suspect category. In theory,
therefore, the government need only advance a rational basis for enacting a statute that treats
individuals differently depending on their sexual orientation. However, Supreme Court and recent
lower court rulings have raised questions about whether classifications involving sexual
orientation can meet this most deferential standard of review.
For example, in Romer v. Evans, the Court held that Amendment 2 of the Colorado constitution,
which barred localities from enacting civil rights protections on the basis of sexual orientation,

1 California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington.
2 Indiana, Pennsylvania, West Virginia, and Wyoming.
3 Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan,
Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.
4 133 S.Ct. 2675 (2013).
5 The Fifth Amendment applies to the federal government while the Fourteenth Amendment applies to the states. In
Bolling v. Sharpe (347 U.S. 497 [1954]), the Supreme Court interpreted the Fifth Amendment’s Due Process Clause to
include an equal protection element. In Buckley v. Valeo (424 U.S. 1, 93 [1976]), the Court stated that “[e]qual
protection analysis in the Fifth Amendment area, is the same as that under the Fourteenth Amendment.”
6 U.S. Const. amend. XIV, §1.
7 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
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violated the Equal Protection Clause.8 According to the Court, the Colorado amendment violated
the guarantee of equal protection because the law was motivated strictly by animus and because
there was otherwise no rational basis for enacting such a sweeping restriction on the legal rights
of gays and lesbians.9
Substantive Due Process (Right to Privacy)
The Fourteenth Amendment’s Due Process Clause has a substantive component which “provides
heightened protection against government interference with certain fundamental rights and liberty
interests.”10 Although the Constitution does not specifically mention a fundamental right to
privacy, courts recognize this right to encompass interpersonal relations.11 For example, in
Lawrence v. Texas,12 the Court considered a constitutional challenge to a Texas statute that made
it a crime for individuals to engage in homosexual sodomy. The Court held that the Fourteenth
Amendment’s due process privacy protections encompass private, consensual gay sex.13
While states have the authority to regulate marriage, this authority is not without limits. In a
series of cases, the Court has struck down laws that impermissibly burden an individual’s ability
to exercise the right to marry.14 For example, in Loving v. Virginia15 the Court found that
Virginia’s anti-miscegenation statute violated both the Equal Protection Clause and Due Process
Clause of the Fourteenth Amendment. The Court held that individuals could not be restricted
from exercising their existing right to marry on account of the race of their chosen partner.16
According to the Court,
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and
survival ... To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the

8 517 U.S. 620, 635 (1996).
9 Id. at 634.
10 Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
11 Loving v. Virginia, 338 U.S. 1 (1967). In addition to the freedoms explicitly protected by the Bill of Rights, the
“liberty” specifically protected by the Due Process Clause includes the right to have children, Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262
U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381
U.S. 479 (1965); to use contraception, id.; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v.
California, 342 U.S. 165 (1952); and to abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833
(1992).
12 539 U.S. 558 (2003).
13 Id. at 578 stating that:
The petitioners are entitled to respect for their private lives. The State cannot demean or control
their destiny by making their private sexual conduct a crime. The right to liberty under the Due
Process Clause gives them the full right to engage in their conduct without the intervention of the
government. It is a promise of the Constitution that there is a realm of personal liberty which the
government cannot enter. The Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual.
14 See e.g., Zablocki v. Redhail, 434 U.S. 347 (1978) (invalidating a Wisconsin statute that required any Wisconsin
resident to prove compliance with any support obligation for non-custodial children); Turner v. Safley, 482 U.S. 78
(1987)(invalidating a Missouri regulation that prohibited inmates from marrying unless the prison superintendent
approved of the marriage).
15 388 U.S. 1 (1967).
16 Id. at 12.
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principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the
State’s citizens of liberty without due process of law. The Fourteenth Amendment requires
that the freedom of choice to marry may not be restricted by invidious racial discrimination.
Under our Constitution, the freedom to marry, or not marry, a person of another race resides
with the individual and cannot be infringed by the State.
United States v. Windsor: The Challenge to the
Federal Defense of Marriage Act
In United States v. Windsor,17 a closely divided Court struck down a portion of the federal
Defense of Marriage Act (DOMA),18 finding that it violated the equal protection guarantees of the
Fifth Amendment. DOMA was enacted “[t]o define and protect the institution of marriage.”
Section 219 allows all states, territories, possessions, and Indian tribes to refuse to recognize an act
of any other jurisdiction that designates a relationship between individuals of the same sex as a
marriage.20 Section 3 had required that, for purposes of federal enactments, marriage would be
defined as the union of one man and one woman.21 As federal agencies grappled with the
interplay of DOMA and the distribution of federal marriage-based benefits, questions arose
regarding DOMA’s constitutionality and the appropriate standard (strict, intermediate, or rational
basis) of review to be applied to the statute.
In Windsor, the plaintiff and her late spouse were New York residents who had been legally
married in Canada and whose same-sex marriage was legally recognized in New York. Because
of DOMA, the decedent’s estate could not claim the unlimited marital deduction for purposes of
the federal estate tax. As a result, the estate owed $363,053 in taxes, which were paid. Ms.
Windsor sued, claiming that Section 3 of DOMA violated the equal protection clause of the U.S.
Constitution. Using a deferential rational basis review and ordering a refund of the taxes paid, the
district court granted the plaintiff’s motion for summary judgment holding that DOMA’s
definitional section was unconstitutional.22 The lower court’s ruling was affirmed on appeal;
however, the appellate court determined that intermediate scrutiny was the appropriate level of
review to apply to the provision.

17 133 S.Ct. at 2696. Section 2 was not challenged.
18 P.L. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. §7 and 28 U.S.C. §1738C).
19 28 U.S.C. §1738C states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give
effect to any public act, record, or judicial proceeding of any other State, territory, possession, or
tribe respecting a relationship between persons of the same sex that is treated as a marriage under
the laws of such other State, territory, possession, or tribe, or a right or claim arising from such
relationship.
20 Section 2 was not challenged in Windsor.
21 1 U.S.C. §7 stated:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of
the various administrative bureaus and agencies of the United States, the word “marriage” means
only a legal union between one man and one woman as husband and wife, and the word “spouse”
refers only to a person of the opposite sex who is a husband or a wife.
22 Windsor v. United States, No. 10 Civ. 8435 (S.D.N.Y. June 6, 2012).
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In an opinion authored by Justice Kennedy, the Supreme Court relied on federalism, due process,
and equal protection principles. The Court declined to determine whether Section 3 of DOMA is
an unconstitutional “intrusion on state power.” Instead the Court struck down the section on equal
protection grounds using a “closer examination” and rational basis analysis.
In its opinion, the Court examined the historical relationship between the federal and state
governments concerning domestic relations. Traditionally, states have maintained exclusive
control over defining and regulating marriage. While marriage laws may vary among the states,
marriages within a state are treated equally. According to the Court, Section 3 of DOMA runs
contrary to this practice. Specifically, the Court noted that “[b]y creating two contradictory
marriage regimes within the same State, DOMA forces same-sex couples to live as married for
the purpose of state law but unmarried for the purpose of federal law, thus diminishing the
stability and predictability of basic personal relations the State has found it proper to
acknowledge and protect.”23
After examining DOMA’s history, the Court concluded that “its purpose is to discourage
enactment of state same-sex marriage laws and to restrict the freedom and choice of couples
married ... ”24 As such, the Court found Section 3 invalid, specifically stating that “no legitimate
purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity.”25
In their respective dissents, Chief Justice Roberts emphasized that the majority opinion only
applied to actual marriages;26 Justice Scalia speculated that the decision would lead to a
constitutional right to same-sex marriage;27 and Justice Alito argued that there is no constitutional
right for same-sex couples to marry.28
While the Court resolved the question of the constitutionality of a federal definition of marriage
excluding same-sex couples, it left unresolved several questions: (1) whether same-sex couples
have a fundamental right to marry; (2) whether sexual orientation classifications warrant
heightened scrutiny or the more deferential rational basis standard of review; (3) whether a state
may prohibit same-sex marriages within its borders; and (4) whether a state may refuse to
recognize a same-sex marriage validly contracted outside its borders.

23 133 S.Ct. at 2694.
24 Id. at 2693.
25 Id. at 2696.
26 Id. at 2696 (Chief Justice Roberts, dissenting)(stating that [t]he Court does not have before it, and the logic of its
opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential
authority to define the marital relation,” ante, at 2692,” may continue to utilize the traditional definition of marriage.”).
27 Id. at 2710 (Scalia, J., dissenting)(explaining that “the majority arms well every challenger to a state law restricting
marriage to its traditional definition” and transposing certain portions of the majority opinion to reveal how it could
assist these challengers).
28 Id. at 2714 (Alito, J., dissenting)(stating that “[w]hat Windsor and the United States seek, therefore, is not the
protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a
legislative body elected by the people, but from unelected judges.”).
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Post-Windsor Litigation
In the aftermath of the Windsor decision, lower federal courts have begun to address the
constitutionality of state statutory and constitutional bans on same-sex marriage and recognition
of such unions.29 To date, federal appellate courts in the Fourth,30 Seventh,31 and Tenth32 Circuits
as well as several federal district courts33 have broadly construed Windsor and struck down state
provisions which prohibit same-sex marriages within their borders. In Kitchen v. Herbert,34
Bishop v. Smith,35 and Bostic v. Schaefer,36 both appellate courts affirmed lower court decisions
which found that such bans violate both the equal protection and due process guarantees of the
Fourteenth Amendment as they impermissibly infringe on the fundamental right to marry. In
Kitchen, the court concluded that “a state may not deny the issuance of a marriage license to two
persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the
marriage union.”37 Relying on a series of “marriage” cases, the appellate courts have taken an
expansive view of the fundamental right to marry and found that the right encompasses same-sex
unions and the recognition of these unions. While most district courts have used a rational basis
review, both appellate courts concluded that strict scrutiny is appropriate as a fundamental right is
implicated. Conversely, a federal district court upheld Louisiana’s prohibition and non-
recognition of same-sex marriage against equal protection and due process challenges. 38
According to the appellate courts, the fundamental right to marry includes the right to choose a
same-sex partner and have that union recognized across state lines.39 The courts relied on a series
of cases in which the Supreme Court struck down laws that prohibited interracial marriage,40
marriage of individuals owing child support,41 and marriage of prison inmates.42 Both circuit

29 Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, *1, *16 (C.A. 10 (Utah)) (stating “we agree with the multiple
district courts that have held that the fundamental right to marry necessarily includes the right to remain married.”).
30 Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (C.A.4 (Va.)), *1, *13.
31 Baskin v. Brogan, Nos. 14-2386, 14-2387, 14-2388, 14-2526, 2014 WL 4359059 (C.A.7 (Ind.)), *1 (covering
challenges to Indiana and Wisconsin bans).
32Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, *1, *16 (C.A. 10 (Utah)); Bishop v. Smith, Nos. 14-5003, 14-
5006, 2014 WL 3537847 (C.A. 10 (Okla.)).
33 Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *1 (D. Utah, December 23, 2013); Bishop v. Holder, No.
04-CV-848-TCK-TLW, 2014 WL 116013, at *1 (N.D. Okla., January 14, 2014); Bostic v. Rainey, Civil No. 2:13cv
395, 2014 WL 561978, at *1 (E.D. Va., February 13, 2014); Deboer v. Snyder, No. 12-CV-10285, 2014 WL 1100794,
at *1 (E.D. Mich., March 21, 2014); Latta v. Otter, 2014 WL 1909999, at *1 (D. Idaho 2014); Geiger v. Kitzhaber,
2014 WL 2054264, at *1 (D. Or. May 19, 2014); Wolf v. Walker, 2014 WL 2558444 (W.D. Wis., June 6, 2014); De
Leon v. Perry, 975 F.Supp.2d 632 (W.D. Tex., 2014).
34 No. 13-4178, 2014 WL 2868044, *1, *1 (C.A. 10 (Utah)).
35 Nos. 14-5003, 14-5006, 2014 WL 3537847 (C.A. 10 (Okla.)).
36 Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (C.A.4 (Va.)).
37 Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, *1, *1 (C.A. 10 (Utah)); see also, Bostic v. Schaefer, Nos. 14-
1167, 14-1169, 14-1173, 2014 WL 3702493 (C.A.4 (Va.)), *1, *1; Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL
3537847 (C.A. 10 (Okla.)).
38 Robicheaux v. Caldwell, Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, *1, *1 (E.D. La. September 3, 2014).
39 CF, Borman v. Plyes-Borman, No.2014CV36 located at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/
08/complete-copy-Tennessee-ruling.pdf (last visited August 14, 2014). Tennessee state court finding that the state’s
Anti-Recognition Law does not violate equal protection using a rational basis analysis.
40 Loving v. Virginia, 388 U.S. 1 (1967).
41 Zablocki v. Redhail, 434 U.S. 347 (1978)(invalidating a Wisconsin statute requiring any Wisconsin resident to prove
compliance with any support obligation for non-custodial children).
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courts have determined that these cases demonstrate a broad right to marry “not circumscribed
based on the characteristics of the individuals seeking to exercise that right.”43 The courts noted
that the Loving Court did not create a new right to interracial marriage, but instead considered it
to be a subset of “marriage.” Accordingly, it follows that same-sex marriage is similarly included
within the fundamental right to marry. According to the Fourth Circuit, these cases support the
notion that the right to marry is a matter of an individual’s freedom of choice.44
Both appellate courts applied strict scrutiny as the standard of review for equal protection and due
process analysis, which requires the state to demonstrate that its classification is narrowly tailored
to serve a compelling interest.45 The states advanced several justifications including responsible
procreation, optimal child-rearing, and civil strife. The courts rejected the states’ justifications as
they were mostly predicated on a link between marriage and procreation.46 In essence, the court
found the bans under inclusive as procreation is not a prerequisite to marriage for opposite-sex
couples. As to the “civic strife” justification, the court in Kitchen noted that Supreme Court
precedent has “repeatedly held that public opposition cannot provide cover for a violation of
fundamental rights.”47 For these reasons, the appellate courts found that the bans violated both the
equal protection and due process guarantees of the Fourteenth Amendment.
While the Seventh Circuit also struck down same-sex marriage bans before it in Baskin v.
Bogan,48 it took a different approach. The court declined to address the due process challenge and
whether the fundamental right to marry encompasses same-sex unions. Instead, it focused on the
equal protection challenge. In determining the appropriate level of review, the court found that
“homosexuals are among the most stigmatized, misunderstood, and discriminated against
minorities....”49 Therefore, the court concluded that those individuals who seek to enter into a
same-sex marriage are part of a quasi-suspect class requiring the government to advance a
sufficiently persuasive justification for discrimination. The court found unpersuasive the
proffered reasons for the bans: child welfare, preservation of traditional marriage, and
procreation.50 Moreover, the court noted that the “discrimination against same-sex couples is

(...continued)
42 Turner v. Safley, 482 U.S. 78 (1987)(invalidating a Missouri regulation prohibiting inmates from marrying without
the prison superintendent’s approval).
43 Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (C.A.4 (Va.)), *1, *13.
44 CF, Robicheaux v. Caldwell, Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, *1, fn 13 (E.D. La. September 3,
2014)(distinguishing listed cases).
45 Id. at *6 - *8 (E.D. La. September 3, 2014)(upholding Louisiana’s prohibition and non-recognition of same-sex
marriage using a rational basis analysis as the relevant provisions do not implicate the fundamental right to marry).
46 Id. at *8 (stating that “Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the
opinion of other ... in linking children to an intact family formed by their two biological parents, as specifically
underscored by Justice Kennedy in Windsor.”).
47 Kitchen v. Herbert, 2014 WL 2868044, at *30.
48 Nos. 14-2386, 14-2387, 14-2388, 14-2526, 2014 WL 4359059 (C.A.7 (Ind.)), *1 (covering challenges to Indiana and
Wisconsin bans).
49 Id at*1, *5.
50 Id. (stating that “[t]he challenged laws discriminate against a minority defined by an immutable characteristic, and
the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need
marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be
taken seriously.”); see also, Latta v. Otter, No. 14-35420, 2014 WL 4977682, *1, *1 (C.A. 9 (Idaho)) (finding that
states’ (Idaho and Nevada) bans on same-sex marriage fail to further any legitimate purpose, unjustifiably discriminate
on the basis of sexual orientation, and are in violation of the Equal Protection Clause).
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irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened
scrutiny....”51
Implications
A state’s recognition of same-sex marriage implicates a myriad of benefits, rights, and
responsibilities on both the federal and state levels. For example, for federal programs under the
Social Security Administration’s (SSA’s) purview (Social Security, Medicare, and Supplemental
Security Income), the agency generally defers to a state’s definition of marriage. SSA guidance
now allows for the payment of Social Security spousal benefits when the number holder (1) was
married in a state that permits same-sex marriage; and (2) is domiciled (at the time of application,
or while the claim is pending a final determination) in a state that recognizes same-sex marriage.
On the state level, there may be tax implications as same-sex couples would be able to file a joint
state tax return to match their federal return,52 as well as implications for the holding, transfer,
and inheritance of property.
Conclusion
The Supreme Court has not expressly resolved the issue of the constitutionality of state
prohibitions or non-recognition of same-sex marriages. However, rulings in Loving, Romer,
Lawrence, and Windsor appear to call into question the constitutionality of such prohibitions.
Collectively, these cases prohibit states from passing laws based on animus toward gays and
lesbians, extend constitutional protection to sexual choices of homosexuals, and prohibit the
federal government from treating opposite-sex and same-sex marriages differently. Lower federal
courts that have addressed the issue of state prohibitions on same-sex marriage have unanimously
concluded that such bans violate equal protection and due process principles. While these courts
recognize a state’s power to regulate marriage, such regulation must comport with an individual’s
constitutional rights. These courts have rejected states’ asserted governmental interests and
instead found them not rationally related to the states’ prohibitions of same-sex marriage. Two
appellate courts have broadly interpreted the fundamental right to marriage to encompass same-
sex marriages and the recognition of such unions. These courts concluded that the right to marry
is a matter of an individual’s freedom of choice. Rulings requiring states to recognize same-sex
marriages entered in other states would apparently supercede and call into question the validity of
Section 2 of DOMA, which permits the non-recognition of such unions. Additional rulings from
the courts, including the Supreme Court, may be forthcoming before the validity of these state
bans is definitively resolved.

51 Id.
52 CRS Report R43157, The Potential Federal Tax Implications of United States v. Windsor (Striking Section 3 of the
Defense of Marriage Act (DOMA)): Selected Issues, by Margot L. Crandall-Hollick, Molly F. Sherlock, and Carol A.
Pettit.
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Author Contact Information
Alison M. Smith
Legislative Attorney
amsmith@crs.loc.gov, 7-6054

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