Effect of Windsor

Understanding Windsor

Summary courtesy of the Political Science department at Texas A & M:

"In United States v. Windsor, the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional because it violated principles of Equal Protection by treating relationships that had equal status under state law differently under federal law. The majority opinion was authored by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented. Section 3 of DOMA defines marriage as the union of one man and one woman for purposes of all federal laws. The issues before the Court were (1) whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State, and (2) whether the parties before the Court had standing to appeal to the Court. Justice Kennedy, writing for the Court, held that the parties had standing to appeal to the Court. On the merits, the Court held that by treating some persons that the state has recognized as married differently than other persons that the state has also recognized as married, the federal government violated the Equal Protection principles guaranteed by the Fifth Amendment. In effect, the Court held that DOMA resulted in treating a subset of state sanctioned marriages as unequal to other state sanctioned marriages. Justice Kennedy noted that regulation of domestic relations is within states' traditional authority, and that the sweeping nature of DOMA as applying to all federal laws had the purpose and necessary effect of treating differently a relationship that the state treated the same. This "demeans" the married couple that is treated differently. In concluding, the Court made it clear that "[t]his opinion and its holding are confined to those lawful marriages" under state law. Chief Justice Roberts, dissenting, wrote that the Court lacked convincing evidence to conclude that President Clinton, who signed, and 342 representatives and 85 senators, who voted for, DOMA were motivated by a desire to harm others. "Interests in uniformity and stability amply justified Congress' decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world." The Chief Justice noted that the Majority's holding is clearly limited by its analysis and does not address "the distinct question whether the States in the exercise of their 'historic and essential authority to define the marital relation' may continue to utilize the traditional definition of marriage." In addition, the Chief Justice wrote that the Court lacked jurisdiction to decide the case and that it should not have reached the merits. Justice Scalia, joined by Justice Thomas, and by the Chief Justice, in part, agreed with the Chief Justice that the Court had "no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors . . . spring forth from the same diseased root: an exalted conception of the role of this [Court] in America." Under Article III of the Constitution, federal courts may only hear cases in which there is an actual "case or controversy." Because the United States (through the President and the Attorney General) agreed with the trial court's conclusion that DOMA's application to the Plaintiff (Windsor) was unconstitutional, there was no case or controversy to appeal. In effect, all the real parties in interest agreed with each other, so there was no case. It is unprecedented in history for the Court to address the merits of a case where there was no actual controversy before the Court. "The Majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below." Thus, the Court overstepped is constitutional boundaries by deciding the case on the merits. Furthermore, Justice Scalia noted that the Court's merits analysis is unsupported by the Constitution's text or the Court's historic jurisprudence. Congress clearly had a rational basis for desiring uniformity in application of federal laws. In creating a uniform definition, Congress "did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence-indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostis humani generis, enemies of the human race." Justice Alito also dissented, joined in part by Justice Thomas. Justice Alito would have found that Congress had standing to defend DOMA and that "the Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue." Same-sex marriage is clearly not a fundamental right since "it is beyond dispute that [it] is not deeply rooted in this Nation's history and tradition." In sum, "[s]ame-sex marriage presents a highly emotional and important question of public policy-but not a difficult question of constitutional law." 1

Post Windsor

"There have been 65 victories for the freedom to marry since June 2013, when the U.S. Supreme Court struck down the core of the so-called Defense of Marriage Act in Windsor v. United States. Forty-one pro-marriage rulings have been issued in federal court, eighteen have been issued in state court, and five have been issued by a federal appellate court." 2

Many of the rulings grant same sex couples the legal right to marry, and / or require states to recognize lawful same sex marriages from other states.3 Nearly 72% of the U.S. population lives in a state currently issuing marriage licenses to same-sex couples. 4

The following is a breakdown of the current law in each state, courtesy of freedomtomarry.org:

Marriage (38 Jurisdictions)
Alabama*, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida*, Hawaii, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Washington, West Virginia, Wisconsin, and Wyoming (* Marriage licenses being issued as case proceeds to appeal)

Marriages from Other States Respected (1 State)
Missouri

Anti-Marriage Federal Appellate Ruling; Pending Review by Supreme Court (4 States)
Kentucky, Michigan, Ohio, Tennessee

Pro-Marriage Ruling Issued by Judge, On Hold Pending Further Action (7 States)
Arkansas (2 rulings), Louisiana, Mississippi, Missouri, Nebraska (Set to take effect 3/9), South Dakota, Texas

Anti-Relationship Recognition Constitutional Amendments (10 states)*
Arkansas, Georgia, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas

Anti-Marriage Constitutional Amendments (3 States)
Missouri, Mississippi, Tennessee

Anti-Marriage Laws or State Statutes (14 states)**
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Missouri, Mississippi, North Dakota, Ohio, South Dakota, Tennessee, Texas

* States where language goes beyond just marriage and affects other legal relationships, such as civil unions or domestic partnerships

** This list includes states with laws or statutes that prohibit marriage. The list includes all states with constitutional amendments that prohibit marriage or relationship recognition for same-sex couples, with the exception of Nebraska.5

Because of the rapidly changing law with respect to LGBT marriage rights, and the resulting impact on adoption and surrogacy laws, be sure to review the most recent rulings in your state or federal district before advising clients on how to proceed. In some cases, particular counties within a state may issue same-sex marriage licenses, even when the larger state government will not, as in the case with Missouri.6

New developments in the law with regard to marriage can impact the related issues of adoption and/or surrogacy. In Costanza and Brewer v. Caldwell, a Louisiana state court upheld the petitioner's request that their marriage (California) be recognized in the state of Louisiana for the purpose of an interfamily adoption. Chastity Brewer gave birth to a child in 2004 via artificial insemination by an anonymous sperm donor. Pursuant to state law, the sperm donor had no legal rights or responsibilities to the child, and Brewer remained the sole legal parent. Brewer married Angela Costanza in California in 2008. Brewer and Costanza filed for an interfamily adoption in 2013. Louisiana Attorney General Caldwell requested notice of the final hearing for the adoption.

The interfamily adoption case went to hearing in January of 2014, and court records show that the Attorney General was not notified of the hearing, and did not appear. The trial court reviewed the adoption file and approved the adoption. The adoption was later appealed by the Attorney General. The appellate court found that the Attorney General was entitled to notice of the hearing in order to present his arguments against the adoption. The adoption order was vacated and remanded back to the trial court.

In its written opinion, the trial court thoroughly analyzed the case using the Windsor ruling. The trial court further noted that Brewer and Costanza were in a better position than the courts to decide the best interests of their child. The court noted, "...Louisiana cannot define and regulate marriage to the extent that it infringes upon the constitutional rights of the petitioners." The trial court also compared the right to marry for same sex couples to the historical struggle for the right to marry for interracial couples. The court found that Louisiana's laws violate the equal protection, due process and full faith and credit clauses of the constitution. The trial court ruled on remand that Louisiana must recognize same sex marriages from other states, including the marriage of Brewer and Costanza, and that the adoption of the child be approved.7

In states that do not recognize both parents in a same-sex couple, the results can be disastrous for families. An article from the American Bar Association succinctly lists the issues that same-sex parents face when their state will not recognize each party's parental rights:

"This lack of a legal relationship has very real and important consequences for the child. Without a legal relationship with the second parent, a child has no right of financial support or inheritance from the nonlegal parent and cannot receive social security, retirement, or state workers' compensation benefits if the nonlegal parent dies or becomes incapacitated. The child may also be ineligible for health or other insurance benefits supplied by the nonlegal parent's employer, and the nonlegal parent could be ineligible for leave under the Family Medical Leave Act if the child became seriously ill. Even in an emergency, the nonlegal parent may not be able to consent to medical treatment or even visit the child in the hospital.

The vulnerability becomes even more acute in cases where the legal parent dies or becomes incapacitated. Without a legal parental relationship, the child may be removed from the care of the nonlegal parent, become a ward of the state, or be placed with the child's blood relatives whether or not the child has a close relationship with them. Even a legal parent's nomination of the partner as the child's guardian in a will is no guarantee that those wishes will be followed." 8

Regardless of opinions about same-sex marriage, it is clear that laws are changing to avoid situations like the ones described above and to offer more protection to children of same-sex parents. When advising clients, there are two key issues to consider, first whether the client has a right to marry in their state (or if the client's out of state marriage will be recognized). If so, then the client can enjoy the benefits of marriage and the protections it provides should the relationship end with regards to property division, maintenance and child support. Second, the attorney should evaluate for the client whether the state recognizes parental rights for both same-sex parents.9

Researching the current status of same-sex marriage laws in your state is important when advising clients with regard to same sex parental rights, adoptions and surrogacy agreements. Many states that allow same-sex marriages, civil unions and domestic partnerships allow same-sex adoptions. In states where this is not available to protect the child's emotional and financial security, other remedies may be available, including guardianships, wills or other private agreements.10

The most common way for same-sex parents to establish parental rights for both parties is via adoption. The type of adoption will vary based on the parent's biological relationship to the child, marital status and state law. In some states, a person can adopt their partner's biological child, creating parental rights for the "second parent," while leaving the rights of the biological parent intact. This is referred to as, "second parent adoption." If the same-sex parents are married, they may be able to pursue a step-parent adoption. This would depend on whether their home state recognizes their marriage.11 Lambda Legal maintains an interactive map of the United States that indicates (by clicking on the selected state) whether the state approves second parent adoptions, and refers the reader to the appropriate statute or case law.12

When neither party is biologically related to the child, or in states where second parent adoption is not recognized, same sex parents may petition for a joint adoption.13 Mississippi prohibits adoption by two parties of the same gender.14 Utah prohibits adoption by two parties living together who are not joined in a marriage legally recognized in the state.15 Where same sex couples petition to adopt via second parent, step-parent or joint adoptions, the adoption must still be approved by a court pursuant to the child's best interest. Many of these petitions are recommended for approval to the court. Most courts have found that a party's LGBT status will not negatively affect the child, and have approved petitions as being in the child's best interest.16

The ability of same sex couples to establish parental rights after a child is born via a surrogate can be analyzed pursuant to the adoption laws in their state. This is an extremely delicate area when surrogacy is involved. If same sex adoption is not allowed in a particular state, it is very likely that the surrogate (even a gestational surrogate biologically unrelated to the child) could be listed as the other legal parent. This welcomes a host of legal issues and potential liability for the attorney if this is not considered and the clients are not properly advised.

The current law changes rapidly with new opinions being released and an upcoming Supreme Court opinion on the horizon - be sure to research the most current state of the law before advising clients. Four cases will be heard by the United States Supreme Court at oral argument the week of April 28, 2015, with expected ruling in June of 2015.17 The cases are:

1. Bourke & Love v. Beshear, Kentucky - this case is a federal court challenge to Kentucky's constitutional ban on marriage for same-sex couples. This case is unique to the group of cases being heard, as it poses both questions regarding same-sex marriage. First, whether the Fourteenth Amendment requires states to license same-sex marriages, and second, whether the Fourteenth Amendment requires states to recognize a same-sex marriage from another state.18 Here is a biography of one of the couples involved in the case:

"Greg Bourke and Michael DeLeon have been together since 1981 and are raising two children. They live in Louisville. The couple was married in 2004 in a ceremony overlooking Niagara Falls but continue to fight for legal recognition in their home state.

Because of Kentucky's discriminatory marriage law, Greg and Michael's children each have only one legal parent and only Michael's name is listed on their children's birth certificates. Even though they have drawn up medical powers of attorney and other legal documents, they do not enjoy the legal protections and emotional security that comes with marriage and are fighting to end Kentucky's discriminatory laws so that their family can finally be fully protected.

Of their more than three decade-long relationship, their daughter Bella said, You guys belong together because no one else is going to laugh at your jokes other than yourselves." Having already built a life of love and laughter, the family just wants to ensure that they have the legal protections in their home state that will give them security as they grow older."19

2. Obergefell & Henry v. Hodges, Ohio - This is a challenge to Ohio's refusal to recognize a same-sex marriage from another state. The plaintiffs in this case (two widowers and a funeral director) are seeking recognition of out of state same-sex marriages in order to properly record the surviving spouse on the state death certificate. 20 This case is unique in that one of the plaintiffs is not involved to have his marriage recognized, but the nature of the case does affect his business:

Robert Grunn has been a licensed funeral director in the state of Ohio for over 22 years. He is himself gay and caters his funeral services to gay and lesbian individuals and families. Mr. Grunn has had many married gay and lesbian clients, including James and John, who utilized his services when John died.

Because of the District Court's Order in this case, Mr. Grunn was able to list John as married and list James as his surviving spouse on John's death certificate. He intends to properly record the marriages of married lesbian and gay decedents in the future, but fears that by doing so he may be prosecuted for purposely making a "false statement" on a death certificate.

He brought this case seeking clarification that the marriage recognition bans are unconstitutional as applied to death certificates so that he can continue to honor the lives of his gay and lesbian clients by properly recording their marriages in death.21

3. DeBoer v. Snyder, Michigan - In March of 2014, a federal judge ruled that Michigan's ban on same-sex marriage violated federal law, and 300 same-sex couples in the state were married before Governor Rick Snyder declared that the state would not recognize these marriages for the purpose of state benefits. Eight (8) of the couples filed suit, and their case for state recognition of their marriages will also be heard by the United States Supreme Court.22

4. Tanco v. Haslam, Tennessee - In October of 2013, the National Center for Lesbian Rights (NCLR) filed suit on behalf of three couples in an effort to have Tennessee recognize each couples out of state, same sex marriage as a legal marriage in Tennessee. The NCLR recognizes the importance of the Supreme Court's decision to hear these four cases, stating, "...the Court has an opportunity to bring an end to the serious harms that destabilize the lives of same-sex couples in the small minority of states that continue to deny them the freedom to marry."23

President Barack Obama, stated in a February interview with Buzzfeed News that he welcomes the Supreme Court to enforce the equal protection clause and end the, "patchwork" of marriage laws. 24 Certainly for today's family law attorneys, a united federal and state approach to same-sex marriage, adoption and surrogacy will ease the ability to advise clients. Hopefully in the future, the recent court opinions will stabilize the "patchwork" of state laws, securing rights for all families to marry and adopt.

The president is not the only one bothered by the inconsistencies in marriage laws from state to state. American companies, including Amazon, American Express, Bank of America, Ben & Jerry's, General Mills and 374 other companies and/or employers signed a brief in support of same-sex marriage, citing moral (discrimination) and financial (navigating benefits under laws that vary from state to state) problems with states continuing to deny same-sex marriage. 25 This is an exciting time for the LGBT community and practitioners of family law. Ultimately, the goal for both will be that all couples will be able to marry, adopt, and contract in surrogacy just as opposite-sex couples are able to do today, in every state. Apparently, the federal government has this goal in mind as well, as U.S. Solicitor General Donald B. Verrilli, Jr., will argue for a marriage rule for all fifty states when the case goes in front of the United States Supreme Court on April 28, 2015.26 Attorneys and all interested parties will be monitoring this historic decision.


1 Summary of United States v. Windsor Decision, http://politicalscience.tamu.edu/documents/faculty/Legal-Summary-Windsor.pdf (last visited April 10, 2015).

2 Marriage Rulings in the Courts, http://www.freedomtomarry.org/pages/marriage-rulings-in-the-courts (last visited April 6, 2015).

3 Id.

4 States, http://www.freedomtomarry.org/states/ (last visited April 6, 2015).

5 Where State Laws Stand, http://www.freedomtomarry.org/pages/where-state-laws-stand (last visited April 10, 2015).

6 Missouri, http://www.freedomtomarry.org/states/entry/c/missouri (last visited April 5, 2015).

7 http://freemarry.3cdn.net/cf873c23e92f4778df_mlbr80wwv.pdf (last visited April 6, 2015).

8 Tiffany L. Palmer, Family Matters: Establishing Legal Parental Rights for Same-Sex Parents and Their Children, American Bar Association, Vol. 30, No. 3 available at: http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol30_2003/summer2003/hr_summer03_parental.html.

9 Id.

10 Adoption by Lesbian, Gay and Bisexual Parents: An Overview of Current Law, http://www.nclrights.org/wp-content/uploads/2013/07/adptn0204.pdf (last visited April 6, 2015).

11 Id.

12 In Your State http://www.lambdalegal.org/states-regions (last visited April 12, 2015).

13 Adoption by Lesbian, Gay and Bisexual Parents: An Overview of Current Law, http://www.nclrights.org/wp-content/uploads/2013/07/adptn0204.pdf (last visited April 6, 2015).

14 Id.

15 Id.

16 Id.

17 The Freedom to Marry at the United States Supreme Court, http://www.freedomtomarry.org/pages/marriage-cases-seeking-supreme-court-review (last visited April 6, 2015).

18 Bourke v. Beshear - Freedom to Marry in Kentucky, https://www.aclu.org/lgbt-rights/bourke-v-beshear-freedom-marry-kentucky (last visited April 7, 2015).

19 Bourke v. Beshear & Love v. Beshear - Plaintiff Profiles, https://www.aclu.org/lgbt-rights/bourke-v-beshear-love-v-beshear-plaintiff-profiles (last visited April 7, 2015).

20 Obergefell et al. v. Hodges - Freedom to Marry in Ohio, https://www.aclu.org/lgbt-rights/obergefell-et-al-v-hodges-freedom-marry-ohio (last visited April 7, 2015).

21 Id.

22 Caspar v. Snyder - Freedom to Marry in Michigan, https://www.aclu.org/lgbt-rights/caspar-v-snyder-freedom-marry-michigan (last visited April 7, 2015).

23 Case Summary & History, http://www.nclrights.org/cases-and-policy/cases-and-advocacy/tanco_v_haslam/ (last visited April 8, 2015).

24 Ben Smith and Chris Geidner, Obama Welcomes Supreme Court Move to End "Patchwork" Marriage Laws, BuzzFeed News, (Feb. 10, 2015 at 6:24 PM), http://www.buzzfeed.com/bensmith/obama-welcomes-supreme-court-move-to-end-patchwork-marriage.

25 Brief of 379 Employers and Organizations Representing Employers As Amici Curiae In Support of Petitioners, http://freemarry.3cdn.net/12510e39d67076ca00_u0m6i2a33.pdf (last visited April 10, 2015).

26 Richared Socarides, The Coming Gay Marriage Ruling, The New Yorker (April 8, 2015) available at: http://www.newyorker.com/news/news-desk/the-coming-gay-marriage-ruling.

Keywords: Same-Sex Marriage, Same-Sex Couples, Windsor, LGBT Rights, Gay Marriage