Estate and Gifts, Torree J. Breen, Divorce and Family Law

Defense of Marriage Act (DOMA): What does it mean to me?

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On June 26, 2013, the United States Supreme Court issued its opinion in United States v. Windsor or the Defense of Marriage Act (DOMA) opinion.  Although this court decision was a game-changer for the struggle for equal rights, many people are asking, “What does this court decision mean to me here in Michigan?”


DOMA is a two page federal law passed in 1996.  DOMA has three sections: Section One is the name of the law – so far, so good; Section Two says that no state has to acknowledge a same-sex marriage that was performed in another state; and Section Three restricted the definition of the words “marriage” and “spouse” as used in all federal laws, rulings and regulations.  The restriction limited the term “marriage” to mean a union between a man and a woman and restricted the term “spouse” to mean a person of the opposite sex.


In the recent United States v. Windsor opinion, the Supreme Court only addressed Section Three of DOMA and found it unconstitutional.  The Court was looking at the fact that while the State of New York allows for same-sex marriage, DOMA prohibits the federal government from recognizing these marriages.  Because these marriages were not recognized, same-sex couples could not qualify for federal marriage benefits afforded to other married couples.  The Court held that DOMA’s failure to recognize these marriages deprived same-sex couples of their Fifth Amendment right and was, therefore, unconstitutional.


While the ruling invalidating Section Three of DOMA was exciting to read and long overdue, the Court did not address Section Two of DOMA –the section that allows individual states to not acknowledge marriages between same-sex couples that were entered into legally in other states.  Therefore, under the section of DOMA that still survives, Michigan does not need to, and has affirmatively refused to acknowledge legal marriages between same-sex couples.  This is where the problem lies for same-sex couples in Michigan.


If Michigan does not recognize a same-sex marriage, then even if a marriage was legally performed in other state, federal agencies may not acknowledge the marriage either.  How can this be?  Well, federal agencies (Department of Defense, Social Security Agency, Internal Revenue Agency, etc.) look to federal laws and regulations to determine what benefits to administer.  Some federal laws and regulations define marriage in the legislation or rule, while other federal laws and regulations say that the agency should look to state law to determine the definition of marriage.

The Department of Defense acknowledges any legal marriage.  Therefore, same-sex couples who were legally married outside the state would be entitled to military benefits now that Section Three of DOMA has been declared unconstitutional.  On the other hand, the Veterans Administration looks to the law in the veteran’s state of residence to determine what benefits to allow.  Likewise, the Social Security Administration looks at whether the state in which you live at the time that you apply for benefits allows for same-sex marriage when determining who is eligible for benefits.  Finally, it is likely that the Internal Revenue Service will look to the laws of the state in which a couple lives to determine whether a joint tax return will be allowed.

However, all of this information is unconfirmed as most federal agencies are reviewing DOMA and their rules and regulations.  Many have statements on their websites similar to this posted on the Internal Revenue Service’s webpage:

We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act. We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.

The President has stated that he thinks that married residents of all 50 states should be entitled to all federal benefits, but whether he can make this happen has yet to be seen.

Please look to this section for future updates on changes as more information is made available, as well as other Family Law and Estate Planning topics.  You may also find updates at, in our Estate Planning and Family Law blogs.


The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.  By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. 570 U.S. _____ (2013)(pgs 25-26).