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.

DOMA was passed by Congress in 1996, just as many states were engaging in public and legislative debates regarding same-sex marriage. The law has two key provisions; first, it provides that no state is required to give effect to a same-sex marriage granted by the law of any other state. See Windsorat 2682, and 28 U.S.C. § 1738C. Second, it defined “marriage” as follows: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C.A. § 7. This second provision, while not banning same-sex marriages granted by states, did preclude the protection and benefits afforded by marital status in over 1,000 federal laws. Windsor at 1683. It is this latter provision that has been struck by the Supreme Court.

The facts of Windsor reflect some of the issues at stake in the debate over permitting same-sex marriage: In 1963, two women (Edith Windsor and Thea Spyer) began a

long-term relationship; in 2007, the couple was married in Canada, but remained residents of New York state. In 2009, Thea died, having left her entire estate to Edith. Windsor at 2683. Under the Tax Code, Edith was required to pay inheritance taxes upon receipt of the estate, because she was not considered a spouse of Thea, which status would have barred any tax on the passing of the inheritance. See 26 U.S.C. § 2056(a). Edith Windsor then filed a lawsuit to obtain a refund of the $363,053 she paid in taxes. Windsor at 2683. The District Court awarded Edith back taxes, and this award was upheld on appeal to the Circuit Court. Ultimately, the Supreme Court affirmed the award of back taxes, finding the definition of marriage in the statute to be unconstitutional; because the marriage between Edith and Thea was valid in the State of New York, the IRS could not levy inheritance taxes against Edith as Thea’s surviving spouse.