Some legal aspects of LGBT issues



A brief review of ways in which the law

treats same-sex married couples compared with opposite-sex married couples

(October 2014)


This legal update replaces one written a few months ago.  This update has been revised to reflect the increasing number of states that recognize same-sex marriages.


Federal law


In June 2013, the U.S. Supreme Court struck down the “Defense of Marriage Act” (“DOMA”).  The U.S. Congress passed DOMA in 1996.  DOMA defined marriage as a legal union between one man and one woman.


In its June 2013 decision, the U.S. Supreme Court declared DOMA unconstitutional.  The June 2013 decision is often called the “Windsor case,” named for the lesbian who sued to challenge DOMA’s constitutionality.


The Windsor case was truly a milestone for same-sex married couples:  DOMA had affected more than 1,100 benefits, rights, and protections provided by federal law based on marital status (source: the U.S. General Accounting Office).  These rights included those related to Social Security benefits (such as benefits paid to surviving spouses), health-care taxes, federal income taxes, estate taxes, health-care continuation benefits, and family and medical leave, and immigration law, among others.


Based on the Windsor case, and later pronouncements and interpretations issued by various federal agencies interpreting the Windsor case, same-sex marriages are recognized for all purposes by the federal government.  But in some instances, such as a same-sex surviving spouse’s entitlement to Social Security benefits of the deceased spouse, the federal government has limited its recognition of those benefits to same-sex couples who reside in states that recognize same-sex marriages.


Following the Windsor case, the Internal Revenue Service now considers same-sex married couples as legally married for all federal tax-related purposes.  Beginning in 2014 (for income earned during 2013), the IRS required same-sex married couples to file their income tax returns only as “married, filing jointly” or “married, filing separately”—the same requirement applied to opposite-sex married couples.


As things stand now, gay and lesbian married couples have made great strides in gaining the same rights opposite-sex married couples under federal law.  But because some of the interpretations that have made this so were issued by federal agencies whose heads are appointed by the President, it is possible that a new, more conservative President may undermine or reverse some of these interpretations in years to come.


State law


The Windsor case did not resolve every outstanding issue involving the rights of gay and lesbian married couples.  Many rights of married couples spring from the laws of individual states.


As of October 2014, Iowa and more than 30 other states, plus the District of Columbia, recognize same-sex marriages. Same-sex married couples in the remaining states are still treated differently from opposite-sex married couples in countless ways.


A key way in which state laws that don’t recognize same-sex marriage continue to discriminate is in the area of adoption.  Adoption is handled by each individual state, and most states prohibit same-sex partners from “jointly adopting” a child who is not their biological child or who is in state custody.


Also, same-sex married couples who married in a state (or another country) where their marriage is legal but who later move to a state that does not recognize same-sex marriages are still deprived of many rights under the laws of their new state of residence.


Finally, in a legal twist that some consider bizarre, some states that prohibit same-sex marriages—ostensibly on grounds of public policy--also refuse to grant same-sex couples the right to divorce.  So by refusing to allow same-sex couples to divorce, the states are actually preserving same-sex marriages, even if the circumstances are difficult for the couple involved.


So the legal battles—today and in the future—will focus on striking down the remaining state laws that continue to discriminate against same-sex married couples.  The overall trend in the law seems favorable to same-sex married couples.  But for advocates in this area, much more work remains to be done.