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The Definition of Marriage is Unconstitutional: Issues for Employers Following Windsor
by Erin L. Ebeler, Woods & Aitken LLP

On June 26, 2013, the United States Supreme Court issued a 5-4 decision that invalidated Section 3 of the federal Defense of Marriage Act (“DOMA” or the “Act”), which defines marriage as being between a man and a woman and a spouse as being a person of the opposite sex. To say the least, this is a controversial topic. Indeed, the states are split regarding whether marriage should be limited to heterosexual couples or also include homosexual couples. The purpose of this article is not to address that controversy or weigh in on whether the Court made the right or wrong decision. Rather, the purpose of this article is to identify the issues now facing employers as a result of the Supreme Court’s decision in United States v. Windsor.

First, it is important to recognize that the Court in Windsor did not strike down all provisions of DOMA. As the Court recognized, DOMA has two main sections. One of those provisions (Section 2) allows states to refuse to recognize same-sex marriages that are performed under the laws of other states. Section 2 of DOMA was not reviewed by the Supreme Court and is still in effect; however, it is important to note that this provision will likely be the subject of numerous legal challenges following Windsor. Rather, the Court focused on Section 3 of the Act which defined marriage for the purpose of federal law to be between one man and one woman and defined a “spouse” to be the person of the opposite sex who is a husband or a wife.

Under the facts of Windsor, Edith Windsor and Thea Spyer were married in Canada in 2007 after having been together since 1963, but they then returned to their residence in New York where they lived until Ms. Spyer’s death in 2009. Ms. Windsor did not qualify as a spouse under federal estate tax laws due to DOMA’s definition of marriage and, therefore, did not qualify for the marital exemption. As such, she argued that she paid $363,053 more in estate taxes than she should have paid because DOMA’s definition of a spouse was unconstitutional and violated her right to equal protection under the law. The majority of the United States Supreme Court agreed with her and held Section 3 to be unconstitutional.

Beyond serving as additional fuel for future attempts to strike down other laws that do not grant equal rights to same-sex couples or restrict certain benefits to only heterosexual couples, the Supreme Court’s decision will likely have an immediate effect on a number of employee-benefit related issues. As the Supreme Court stated:

The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.


To this list, statutes such as the Family Medical Leave Act (“FMLA”) should be added. Under FMLA, a person is permitted leave to care for his or her spouse who is suffering from a serious medical condition. With Section 3 of DOMA in effect, FMLA’s protections were generally viewed to be limited to heterosexual couples in this regard. Now, however, homosexual couples who live in a state that recognizes same-sex marriages likely have a valid argument that they too are able to claim protection under FMLA.

The elimination of Section 3 of DOMA makes it imperative for employers who operate in and hire in multiple states to understand the differences in those states’ laws with regard to marriage. Such employers should carefully review their leave policies and analyze their benefit packages for compliance with state laws that may be contradictory. For those employers solely operating in states such as Nebraska, which has a constitutional amendment defining marriage as between a man and a woman, the effect of Windsor may not be immediate. However, the likelihood is that state constitutional provisions such as Nebraska’s will be challenged as violations of the United States Constitution. Furthermore, city ordinances such as Omaha’s that expand civil rights protections to homosexuals may become more common. As such, all employers must become aware of how their policies are applied to same sex couples and how their benefit packages are designed with regard to such individuals.