Windsor v. United States - Frequently Asked Questions (FAQ)

Document Date: November 8, 2010
Affiliate: New York Civil Liberties Union

On November 9, 2010, Edith “Edie” Windsor filed Windsor v. United States of America, in the United States District Court for the Southern District of New York, challenging the constitutionality of the Defense of Marriage Act (DOMA), a federal law that defines marriage as a “legal union between one man and one woman as husband and wife.” Although Edie and her wife Thea Spyer were recognized as married in their home state of New York, DOMA bars the federal government from recognizing their marriage for estate tax purposes. Edie is represented by the American Civil Liberties Union, New York Civil Liberties Union, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

What is this case about?
Edie Windsor and Thea Spyer shared their lives together as a committed couple for 44 years. They became a couple in 1965, got engaged in 1967, and married in Canada in 2007, after it became legal. When Thea died in 2009, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. Because of a law called the Defense of Marriage Act, or DOMA, the federal government refuses to treat married same-sex couples, like Edie and Thea, the same way as other married couples. This case points out that it is a denial of the equal protection principles of the Fifth Amendment to the United States Constitution for the federal government to pick and choose which marriages it will recognize for federal purposes, when it otherwise leaves that question entirely up to the states.

Who is the plaintiff?
Edie Windsor and Thea Spyer created a life together for 44 years. They lived in New York City, and married in Canada in 2007. Edie cared for Thea as she waged a 30-year battle with multiple sclerosis, but Thea died in 2009. While New York recognizes their marriage, because of DOMA, Edie, as executor of Thea’s estate, was forced to pay significant estate taxes after Thea died, taxes that other surviving spouses would not have had to pay.

What is DOMA?
The “Defense of Marriage Act” or DOMA is a federal law that was enacted in 1996. In our country, states marry people, the federal government doesn’t. But DOMA trumps a state’s determination that a same-sex couple is married and says that they are not married for purposes of federal laws and programs. DOMA applies to all federal laws and programs, and says that “the word ‘marriage’ means only the legal union of a man and a 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.”

Is this case about a federal “right to marry”?
No. If Edie wins her case, the federal government will have to respect her marriage and give her the same tax treatment it gives other surviving spouses. But she does not ask the court to recognize a federal right for same-sex couples to marry, and does not challenge other state laws or amendments excluding same-sex couples from marriage. Edie and Thea already were legally married, and their marriage is recognized in their home state of New York.

Is this case different from Perry v. Schwarzenegger?
Quite different. The Perry case in California addresses whether the federal constitution requires California to allow same-sex couples the freedom to marry. The Perry district court decision holds that it does, and that case is now on appeal. This case is different because Edie and Thea were already married, and New York already recognizes their marriage. Instead, Edie challenges the federal government’s refusal to recognize her valid marriage for purposes of federal tax treatment.

If Edie wins this case, will other states need to recognize marriages of same-sex couples?
No. This case does not affect any state’s marriage licensing or recognition laws. It is about the way the federal government treats people who are considered married by the state of New York. Edie seeks to be treated like anyone else who is considered married by the state of New York.

If Edie wins here, will the ruling apply to married same-sex couples living in other states that recognize their marriages?
Yes, at least in a limited way. If Edie wins this case in the end (after all appeals are over), people living in states that license or respect marriage for same-sex couples should no longer be denied equal treatment for federal estate tax purposes. We may need to seek further clarity from the courts to establish that DOMA is unconstitutional in other contexts as well.

Can same sex couples marry in New York?
Yes. In June of 2011 New York became the sixth state to allow same-sex couples to marry. New York isn’t just the sixth marriage state, it more than doubled the number of people living amidst the freedom to marry (from 15.7 million without New York to 35 million with it).

Which states and countries recognize marriages of same-sex couples?
Same-sex couples have the freedom to marry in six states (Massachusetts, Vermont, New Hampshire, Connecticut, Iowa and New York) and the District of Columbia. In addition, ten countries now allow marriage for same-sex couples (Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina and Mexico).

What can I do to help ensure that the federal government respects my valid marriage?
There’s a bill pending in Congress, called the Respect for Marriage Act, that would repeal DOMA and require the federal government to respect all marriages that are valid or recognized in a state. Please urge your Members of Congress to support the Respect for Marriage Act.

We encourage individuals considering a lawsuit to contact us or any of the legal organizations dedicated to eradicating discrimination against gay people, including Gay & Lesbian Advocates & Defenders, Lambda Legal, and the National Center for Lesbian Rights.

Special Considerations for Bi-National Couples and Servicemembers
We are a same-sex couple and one of us is not a U.S. citizen. Will getting married in Canada or elsewhere allow us to get spousal sponsorship benefits for U.S. immigration purposes?
No. Because immigration laws are federal laws, DOMA means your marriage will not be recognized under U.S. immigration law. This case does not challenge that problem. We are working with Immigration Equality to support legislation to change these rules, and encourage you to help out as well.

Important Warning for Bi-National Couples: Any non-U.S. citizen planning to marry a U.S. citizen should consult an immigration attorney before doing so. Many non-immigrant (temporary) visas require the foreign national to prove to U.S. Immigration that the foreign national does not intend to remain in the United States permanently. If your marriage becomes known to U.S. Immigration, this evidence of a reason to want to stay permanently in the United States could be a ground to deny your spouse a visa in the future.

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