"The effect of the Court’s decision in Windsor is that each State may determine whether or not to permit same-sex marriages."

The Future of Same-Sex Marriages

The United States Supreme Court recently handed down two landmark decisions relating to the treatment under the law of same-sex couples.

Case 1: United States v. Windsor

One case, United States v. Windsor, concerned the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which defines “marriage” and “spouse” as excluding same-sex partners for purposes of all federal laws and regulations, including tax and Social Security benefits. In Windsor, the Court held that Section 3 of DOMA, which defines “marriage” and “spouse” as excluding same-sex partners, is unconstitutional in that it violates the principles of due process and equal protection incorporated in the Fifth Amendment. The Court also stated that, historically, the regulation of domestic relations is a matter reserved to the States, and that DOMA interferes with each State’s rights to determine whether same-sex marriages are sanctioned within that State.

The effect of the Court’s decision in Windsor is that each State may determine whether or not to permit same-sex marriages. Perhaps even more important is that the decision requires that all benefits previously provided by the federal government to opposite sex couples must now be provided to same-sex couples who were married in a state that recognizes same-sex marriage. These benefits include Social Security, federal pensions, and various tax benefits such as filing joint income tax returns, utilizing the estate and gift tax marital deductions and portability of estate tax exemptions.

The Windsor decision is important to Illinois residents in that, although Illinois permits same-sex civil unions, its legislature has yet to permit same-sex marriages. Although the Illinois Senate passed a bill last February authorizing same-sex marriages, the Illinois House has declined to vote on the bill. Under current Illinois law, civil union partners are entitled to all of the legal rights and obligations that opposite-sex spouses have under Illinois state law; however, it is unclear whether partners in an Illinois sanctioned civil union will be considered married for federal benefit purposes.

On a broader scale, it is unclear whether legally married same-sex couples will receive equal tax and Social Security benefits in all states, or only in those states that permit same-sex marriages. For example, if the same-sex couple who was legally married in New York were to move to Illinois, where they will be deemed to be in a civil union, would they be considered to be validly married for purposes of the federal benefits? Moreover, if the same couple were to move to Missouri, where same-sex marriages are prohibited under both state statute and the state Constitution, would they be considered to be validly married for purposes of the federal benefits?

The Windsor decision leaves a number of key questions unanswered. We anticipate that many of the questions will be addressed by Congress and the Internal Revenue Service. In the interim, same-sex couples residing in Illinois should review whether: (1) it might be advantageous to marry in a state that authorizes same-sex marriage; and (2) whether their estate plans should be reviewed in recognition of the current state of the law.

Case 2: Hollingsworth v. Perry

In the second case, Hollingsworth v. Perry, the Supreme Court let stand a ruling of a California court which found the Proposition 8 ban on same-sex marriages to be unconstitutional. While the Hollingsworth case impacts only residents of California, the Windsor case has the ability to impact all fifty states.

For more information please contact Barry P. Siegal, (312)696-1699, or Nancy Franks-Straus, (312)696-1368,