Academic journal article Ave Maria Law Review

Windsor and Its Progeny

Academic journal article Ave Maria Law Review

Windsor and Its Progeny

Article excerpt


Following Windsor v. United States, (1) plaintiffs across the country challenged state same-sex marriage bans. To date, several district courts have struck down either state refusals to recognize same-sex marriages validly celebrated in other states or state refusals to permit such marriages to be celebrated locally, and several circuits have issued opinions on the constitutionality of same-sex marriage bans, all but one of which holding that such bans violate federal constitutional guarantees. (2) Other circuits will be considering challenges in the coming months.

Whether because of the importance of the issue or because of a split in the circuits, the United States Supreme Court has granted certiorari to decide whether the United States Constitution protects the right to marry a same-sex partner. (3) While it seems safe to assume that some of the Justices will answer in the affirmative and others will not, one cannot be certain about how many will vote to affirm that the Federal Constitution protects the right of same-sex couples to marry. Nonetheless, it is assumed here that the Court will hold that the right to marry a same-sex partner is protected, and this article will address the changes, if any, that might be expected in family law were such a ruling to be issued.

Part II of this article discusses Windsor as well as the decisions issued by the Fourth and Tenth Circuits. Part III discusses what the hypothesized decision would likely say, and the kinds of changes that such a decision is likely to cause. The article concludes that were the Court to hold that the right to marry is protected under the federal Constitution, the likely effects on family law in particular are relatively minor and the likely effects on particular families will be quite positive.


In United States v. Windsor, the United States Supreme Court struck down section three of the Defense of Marriage Act (DOMA). (4) Since that decision was issued, several courts have addressed the constitutionality of same-sex marriage bans, sometimes specifically striking down the refusal to recognize such marriages when validly celebrated elsewhere and sometimes striking down the state's ban more generally. It seems likely that the United States Supreme Court will address the constitutionality of same-sex marriage bans on the merits, and Windsor and these circuit cases give some clues about what such a decision might say.

A. Windsor

The Windsor Court offered several reasons to justify its holding that the DOMA section at issue violated federal constitutional guarantees. Some of those reasons would also undermine the power of a state to refuse to recognize same-sex marriages, while others would not. Precisely because of the numerous reasons offered in support of DOMA's unconstitutionality, federal district and circuit court judges have come to very different conclusions about whether and why same-sex marriage bans violate constitutional guarantees.

Section three of the DOMA reads:

   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. (5)

The Windsor Court noted that "[b]y history and tradition the definition and regulation of marriage ... has been treated as being within the authority and realm of the separate States." (6) However, Windsor should not be understood as merely underscoring the power of the states to regulate domestic relations as they see fit. The Court explained that Congress is authorized by the Constitution to supplant state law in certain instances: "Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. …

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