Windsor impact continues, one year later

The U. S. Supreme Court handed down its seminal decision on marriage equality on June 26, 2013 — and the full effect of the ruling continues to be realized one year later.

That day, the nation’s top court found that the portion of the federal Defense of Marriage Act that defined marriage as being between one man and one woman was unconstitutional, following a lawsuit from Philadelphia native Edie Windsor, who was being forced to pay an exorbitant inheritance tax after the death of her wife.

With the ruling, the key provision of the 1996 law crumbled, causing a landslide among discriminatory state and federal laws and policies.

State impact

Pennsylvania is among the states whose marriage-equality laws have done an about-face in the last year.

Since the Windsor ruling, seven states have legalized marriage equality — Hawaii and Illinois through legislative efforts and New Jersey, New Mexico, Oregon, Pennsylvania and Indiana (as of presstime) through court rulings.

Judges in an additional eight states overturned their respective states’ marriage-equality bans, but those decisions have been stayed by the ruling judges or appellate courts pending appeals. Judges in three more states issued rulings overturning elements of the states’ marriage-equality bans, all of which are also being appealed.

That’s a total of courts in 16 states — 22 courts all together, counting multiple rulings from individual states — that have moved to strike part or all of their states’ laws against same-sex marriage in just one year. No court that has considered the issue since Windsor has upheld a marriage-equality ban.

On Wednesday, the 10th Circuit Court of Appeals became the first federal appellate court to find a constitutional right to marry for same-sex couples.

Prior to the Supreme Court ruling, same-sex marriage was legal in 13 states and Washington, D.C., covering about 30 percent of the country’s residents; that number now stands at 20 states and D.C., or about 45.6 percent of Americans.

Witold Walczak, who was on the legal team that led the case that ultimately overturned Pennsylvania’s ban on marriage equality, said the Windsor case has had a direct impact on the state challenges.

“I think it was hugely important,” Walczak said about the Supreme Court decision. “Windsor stopped short of declaring that same-sex couples have a constitutional right to marry but the reasoning the majority employed has really triggered all of the decisions turning down marriage laws across the country. That can be directly attributable to Windsor.”

All of the decisions striking down marriage bans have referenced Windsor.

“Clearly, the Windsor ruling had a domino effect on the states,” added Equality Pennsylvania executive director Ted Martin. “The decision opened the door for all of the states to have real conversations about what it means for all families to have the freedom to marry.”

Policy impact

Last week, the Department of Justice issued a report detailing the federal policy changes put in place since Windsor.

Among the review was the news that the Social Security Administration and Veterans Administration will not be able to fully extend benefits to all same-sex married couples. Currently, both agencies recognize marriage based on the state of residence, not the state of celebration, meaning couples who live in a state that does not recognize same-sex marriage, even if they are legally married out of state, are ineligible. The DOJ report indicates that Congressional action is needed to revise both agencies’ policies.

A group of federal lawmakers, including Pennsylvania Congressmember Allyson Schwartz, gathered on Capitol Hill Wednesday to advocate for the Social Security and Marriage Equality Act. The legislation, introduced last month, would confer full spousal benefits to all legally married same-sex couples.

However, for now, some SSA benefits, such as survivor and lump-sun death benefits, will be available to couples living in states that offer some recognition for same-sex relationships, such as Colorado, Wisconsin and Nevada. And, the VA will begin allowing same-sex spouses of veterans to be buried alongside them at national cemeteries.

Also last week, the administration moved to allow same-sex spouses, regardless of the laws of the state in which they live, to be included equally in the Family and Medical Leave Act.

The latest changes follow a host of federal policy revisions since last summer.

Shortly after the Windsor decision, President Obama directed a team of DOJ lawyers to work with lawyers for all federal agencies to ensure the ruling was reflected in federal policies.

A number of agencies changed their marriage-recognition policies from being based on the state of residence to the state of celebration, while agencies without official policies on the books adopted residence-based rules.

“Given that a majority of states still do not allow or recognize same-sex marriages, this issue often determines whether the federal government can provide marriage-dependent benefits to all same-sex married couples, including those who now live in non-recognition states,” the report stated.

Among the most significant changes: The Internal Revenue Service recognizes all same-sex marriages for federal tax purposes; the Department of Defense provides equal marriage benefits to same- and opposite-sex couples; same-sex married couples can sponsor one another for immigration purposes; federal employees can add same-sex spouses to their health-insurance plans; and same-sex married couples are being treated equal in terms of federal judicial proceedings.

“There is a sea change at the federal level and it looks like there will be more to come,” Martin said. “More can be done via executive order and we hope that states will take this model as an example of how to win victories for LGBT people in the states.

The report goes on to detail a wealth of marriage-related changes that have taken place in the last year in 18 federal agencies.

“The administration’s sweeping interpretation and implementation of the Windsor decision has led to the greatest conferral of equal rights, benefits and obligations to LGBT people in our nation’s history,” said Human Rights Campaign president Chad Griffin. “In record time, Attorney General [Eric] Holder has moved heaven and earth to guarantee equality, and the LGBT community could not ask for a better partner in progress.”

What’s next

Martin said the Windsor case “opened the door for all loving couples and families to take their own cases to court,” noting, “It’s only a matter of time until every state sees the justice for all on marriage.”

As marriage bans are falling state by state, a ruling from the U.S. Supreme Court on the fundamental issue of the constitutional right to marry by same-sex couples would fast-track the issue nationwide.

Walczak said he believes the top court could issue such a ruling in the next year, based on one of the state challenges working its way through the legal system.

“I think it’s likely the U.S. Supreme Court is going to take one of the marriage cases that’s in the pipeline now. In the near future we’re going to start seeing federal appellate court decisions and it’s possible some will result in losses for the good guys,” Walczak said. “But I think that, with what’s going on, the U.S. Supreme Court will have to take one of those cases and I wouldn’t be surprised if we have a decision by them by next June. Certainly if not by then, then the next term, but I think it’ll be in this next term.”

While marriage equality is on the fast track, Martin emphasized that the majority of states — Pennsylvania included — still lack basic nondiscrimination protections for LGBT people.

“Equality PA has made it a priority to be sure that it will no longer be legal in Pennsylvania for LGBT people to be fired from their jobs, evicted from their homes or turned away from a business just because of who they are,” Martin said.