Category Archives: Same Sex Marriage

Down with DOMA: Good News and Bad News

In the Windsor decision, the Court struck down Section 3 of the Defense of Marriage Act (hereinafter “DOMA”) because it was an unconstitutional deprivation of the equal liberty of persons that is protected by the Fifth Amendment.  DOMA attempted to treat “those persons [in same-sex marriages] as living in marriages less respected than others.”  This, it could not do.

Bad News:  In striking down DOMA, the Court did not legalize same-sex marriage in the United States.  Like the Prop 8 case (decided on the same day), the ruling was more limited, which leads to the…

Good News:  The federal government cannot discriminate against same-sex couples.

In the instant case, Ms. Windsor, a New York resident, had legally married her spouse in Canada.  When her spouse died, Ms. Windsor attempted to claim the estate tax exemption for a surviving spouse.  Under DOMA, she was denied.   The Court found that this discrimination was not permitted under the Constitution.  However, it did limit the opinion to “those lawful marriages.”

You can read more about Windsor here.

Gay marriage is legal in some states and not in others.  However, under Windsor, if a state permits same-sex marriage, the federal government must recognize that marriage.

To read more about how this may impact an employee requesting a transfer to a state that permits same-sex marriage, click here.

Other legal rights (sponsoring a foreign-born spouse for immigration purposes, collecting social security, and others) affected by the decision were discussed here.

Kansas Supreme Court Affirms Parental Rights for Same Sex Partners

The Kansas Supreme Court issued a ruling on Friday entitling same sex partners to parental rights over children which they help raise.  The Court affirmed a lower court ruling which awarded parental rights to the non-biological mother of two children conceived through artificial insemination and raised by her and the children’s biological mother during their partnership.  The lower court had denied the biological mother’s attempt to cut off her former partner’s contact with the children after the couple separated, granting joint custody to both women.

If you want to read the full opinion, you can find it on the Kansas Supreme Court website by clicking here.