Status of same-sex marriage in the USA as of 4 December 2014

Abstract

Since the 2013 Windsor decision of the US Supreme Court holding the Defense of Marriage Act (DOMA) unconstitutional, 35 states of the United States, the District of Columbia and 17 foreign countries allow same-sex marriage. The Internal Revenue Service now holds that legally married same-sex couples are treated as married for federal tax purposes, if living in any jurisdiction recognizing same-sex marriage. Justice Kennedy’s decision in the Windsor case held section 3 of DOMA unconstitutional, thus allowing plaintiff, the surviving spouse of a samesex marriage, to claim the federal estate tax marital deduction from the gross estate of her deceased same-sex spouse. In writing the Supreme Court’s opinion in the Windsor case, he said DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Constitution’s Fifth Amendment. In the Hollingsworth case, also decided 26 June 2013, California’s amendment to its constitution banning same-sex marriage was held unconstitutional. The IRS has revised its guidance to reflect both theWindsor andPerry decisions. The Federal Office of Personnel Management has said that all legally married same-sex spouses will now be eligible family members for health insurance purposes. Further guidance from the IRS is needed of the effective date for applying the Windsor case’s holding to federal tax law. Revenue Ruling 2013-17, carries out the Windsor decision by providing that same-sex couples will be considered married for federal income, estate, and gift tax purposes. Potential conflicts of law problems exist in same-sex relationships between most state DOMAs and the laws of those states recognizing same-sex marriages. Thus, conflicts over child custody, due to differences in state laws may develop. A same-sex married couple residing in a state recognizing same-sex marriages should be eligible for Social Security benefits. There are many non-tax and state law issues that have arisen since the Windsor and Perry decisions. Strong opposition to same-sex marriage remains in the United States, particularly among Mormons, Roman Catholics, Evangelical Protestants, and many other Americans. Support for same-sex marriage is increasing in the United States as well as in a number of foreign countries. However, Nigeria, Saudi Arabia, and Uganda have draconian penalties for people in same-sex relationships.