In the recent case of U.S. v. Windsor, 133 S.Ct. 2675 (2013), the United States Supreme Court struck down a major provision of the federal Defense of Marriage Act (DOMA). This was a sea change in the law, and many observers believe this will usher in same-sex marriage as a constitutional right. In Windsor, the Supreme Court held that the IRS could not levy an inheritance tax against Ms. Windsor, who received an inheritance from her same-sex spouse, because the definition of spouse cannot be based upon the sex of the parties. The administration of President Obama was in a bit of quandary prior to the decision in Windsor, as it is in support of same sex marriage, but it has a duty to uphold the law. The executive branch, through the Justice Department, is required
to enforce the laws of the United States, even where the President believes the law in question may be unconstitutional. In this case, the President stated that DOMA would continue to be enforced by the executive branch. However, the President further instructed the Department of Justice not to legally defend DOMA in the Windsor case. Instead, a group of Congressmen, unsuccessfully, led the legal battle to defend the statute.
