Property Law Developments—Joseph William Singer

Section 3 of the federal Defense of Marriage Act (DOMA), 1 U.S.C. §7, Pub. L. No. 104-199, §3, 110 Stat. 2419, passed in 1996, denied federal recognition to same-sex marriages. This meant, for example, that for such purposes as calculating federal income tax, same-sex couples were not recognized as married and entitled to the tax advantages (and disadvantages) of marriage even if they were validly married under state law. A same-sex couple validly married in Massachusetts under Massachusetts law would file state tax returns as a married couple but would then have to file federal tax returns as two unrelated individuals. However, Section 3 was struck down as an unconstitutional violation of the due process and equal protection clauses on June 26, 2013 in the case of United States v. Windsor,  — U.S. —, 2013 WL 3196928 (2013). Windsor found that marriages have traditionally been governed by state, rather than federal law, and held that no legitimate government interest could justify treating same-sex married couples differently from those of opposite-sex married couples. Windsor does not answer the question of which state’s law should be used to determine whether a marriage is valid under federal law. The federal government could look to the law of the place of celebration or the domicile of the parties either at the time of marriage or at the time when recognition of the marriage is sought. For example, while the Veterans Administration looks to the place of celebration to determine if a marriage is valid, the Social Security Administration looks to the domicile of the parties. This issue will be worked out by future federal administrative action and possibly legislative reforms.