Foreign Policy Blogs

Post-Windsor Progress

Awaiting the decision in Windsor v. United States. Image: Flickr, Photo Phiend.

Awaiting the decision in United States v. Windsor. Image: Flickr, Photo Phiend.

Federal agencies are beginning to revise their policies in the wake of the decision in United States v. Windsor, where the Supreme Court of the United States struck down the controversial definition of marriage contained in the Defense of Marriage Act (DOMA). This paradigm shift has the potential to promote a rapid change in the way fundamental human rights are respected, protected, and fulfilled for the Queer Community in the United States.

The question in the case was simple, yet profound: whether the federal government’s act of defining what marriage is violated the constitutional equal protection rights of same-sex spouses legally married under state law. The court employed forceful language in finding DOMA’s construction constitutionally repugnant. The definition was described as  “motivated by an improper animus or purpose,” offensive to a host of considerations that could not be overcome by any “legitimate purpose.”

Initial reactions seemed lackluster – the federal government announced its still operative policy declining to provide some legal entitlements to domestic partnerships where Windsor requires them for legally valid same-sex marriages, echoing the holding’s limitation. Now, as the individual actions necessary to come into compliance with Windsor are occurring, the logical import of the holding is becoming apparent.

The U.S. Department of Treasury, which includes the Internal Revenue Service, has announced its acceptance of this reality. Its decision to recognize all same-sex marriages for federal tax purposes issued the same day the Department of Health and Human Services announced that Medicare benefits now cover same-sex spouses. Domestic partnerships remain distinct from marriages and uncovered whatever the sex of the partners.

Windsor affects more than two hundred provisions of the tax code. Rather than amend all of these provisions to perpetuate a distinction between married couples, the IRS decision reads all references to “husbands” and “wives” and “marriages” to apply equally to same-sex marriages. What used to refer narrowly to a rigid conception of sex is becoming a more fluid, expansive conception of gender.

When legally married same-sex couples file jointly from states that do not recognize same-sex marriages, the question of this distinction’s permissibility will be raised. From there, the general ability of the U.S. governments to maintain an institution of marriage exclusive to heteronormative standards will further erode. Several different lawsuits seeking to expand Windsor’s scope have already been filed, and the largest looming problem is the potential social backlash such momentum could encounter. Fortunately, constitutional grounds underpin the catalyst for recent progress.

Essentially, the federal legislature attempted to declare what marriage is through what it is not, and the federal judiciary responded that it could not define the term in an exclusionary, injurious way. This invalidated the definition set by the federal government, that marriage is between only one man and one woman and is beginning to show the same effect in popular conception. Despite the holding being limited to situations making distinctions between legally married couples irrespective of sex, the conceptual entertainment of a distinction between legally valid same-sex marriages and domestic partnerships is becoming more plainly untenable.

Two prime examples reflecting the move away from accepting the logical fallacy inherent in having a checkerboard recognition and nonrecognition of marriages and partnerships can be found within contemporary judicial reasoning and in popular economic activity. Shortly after Windsor was handed down, federal courts began building on the decision by expounding on the unconstitutionality of state same-sex marriage bans. Just prior to the decisions of the federal agencies, the world’s largest employer after the U.S. and Chinese militaries, Wal-Mart, announced its new policy of extending benefits to domestic partners as it would to opposite-sex spouses of its employees. This trend appears poised to continue, and is precisely this augmenting of a broad cultural viewpoint that the human rights community seeks to engender.



Marc Gorrie

Marc C. Gorrie holds a BA from Sarah Lawrence College, a JD from Indiana University Maurer School of Law – Bloomington, and an LLM in international human rights law with a specialization in international labor rights law from Lund University (Sweden). He is a port welfare worker and ship visitor for the Seamen's Church Institute in Ports Newark and Elizabeth, NJ, where he also collaborates on an educational program on the Maritime Labour Convention directed at port chaplains and welfare workers. He recently contributed to an EU project on legal education and law school curricula in the Gambia, and has held a research fellowship in legal ethics, lectured on federal Indian law and American legal ethics, and worked as a disability advocate.