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In June of 2013, headlines all over the country read “Supreme Court’s DOMA Decision Rules Federal Same-Sex Marriage Ban Unconstitutional.” The public went into a frenzy after this ruling was announced and many same-sex couples raced to the altar. However, were these headlines completely accurate? Not entirely.

The Defense of Marriage Act (“DOMA”) was signed by President Bill Clinton in 1996. DOMA prevented same-sex couples whose marriages were recognized by their home states from receiving the many benefits available to other married couples under federal law. The Obama Administration originally defended DOMA, but in 2011 the Justice Department changed course and decided to no longer continue to provide a defense for the law. Many cases challenging DOMA made their way through the court system. One case that was particularly compelling came to the forefront, United States vs. Edith Schlain Windsor, and made it all the way to the Supreme Court. This case marks the beginning of the end of only part of DOMA.

The State of New York recognized the marriage of New York residents Edith Windsor and Thea Spyer who were married in Ontario, Canada in 2007. Although married in 2007, Edith and Thea had been together for over 50 years. Thea died in 2009 and left her entire estate to Edith who then tried to claim the federal estate tax exemption for surviving spouses. Edith was barred by Section 3 of DOMA from claiming the exemption. The definition of “marriage” and “spouse” in Section 3 of DOMA specifically excluded same-sex partners. Edith Windsor paid $363,053 in federal estate taxes and filed for a refund, which the Internal Revenue Service denied. Edith filed suit.

Although the lower court ruled in favor of Edith and against the United States, the United States refused to comply with the decision and refused to refund the estate tax previously paid to Edith. The refusal of the IRS to comply with a court order triggered the matter to be reviewed by the Supreme Court. While the Republican party defends DOMA, they definitely do not defend taxes, especially estate taxes. The Obama Administration’s decision not to defend the constitutionality of Section 3 of DOMA yet continuing to deny the refund, made this issue ripe for Supreme Court review. The outcome of this matter was very important to thousands of people, especially the Lesbian Gay Bisexual and Transgender (“LGBT”) community.

The June headlines claiming DOMA was held unconstitutional are not entirely accurate. It is true that Edith was successful in striking down Section 3 of DOMA as it refers to the definition of marriage and spouse; however, the other important Section of DOMA, Section 2, has not been challenged, and still allows States to refuse to recognize same-sex marriages performed under the laws of other States. Section 2 of DOMA impacts many people and their ability to attain and claim marriage equality and marital rights by the tension created between federal and state laws.

Same-sex marriage allows same-sex couples to affirm their commitment to one another, and to have their commitment publicly recognized by their family, friends, and community. DOMA is also applicable to over 1,000 federal statutes involving martial rights and benefits. Many of the federal laws impacted by DOMA are beyond the scope of this article, a few of the more important issues are as follows: DOMA allows same-sex married couples to obtain federal government healthcare benefits; it allows them the Bankruptcy Code’s special protection for domestic-support obligations; it allows same-sex spouses to be buried together in veteran’s cemeteries; and, it also allows many same-sex couples not to be excluded from immigration benefits.

In order for DOMA to be applicable, same-sex couples must be married rather than partners, and the couple must travel to a state that allows same-sex marriage if they do not live in one. In Delaware, now is the time for same-sex marriage. Delaware adopted civil unions in April, 2011. As of July 1, 2013, Delaware began recognizing and performing same-sex marriage ceremonies.

Delaware law protects people from arbitrary discrimination in employment, housing, public accommodation and many other areas. Delawareans now can obtain a marriage license and be married by a Clerk of the Peace. However, if an employee or Clerk of the Peace is still adverse to same-sex marriage, they are not forced to perform the ceremony, and are able to authorize another employee to perform the ceremony. Civil marriages and same-sex marriage do not affect religious institutions or clergy. No clergy person or state employee will ever be forced or required to perform or recognize any marriage that does not conform with their individual religious beliefs.

In addition to the new federal law prohibiting discrimination against same-sex marriage, there are laws in some states prohibiting discrimination based on gender identity. The motivation is simple – protect people from arbitrary discrimination in employment, housing, and public accommodations, among other areas. Gender identity is distinct from sexual orientation and refers to a person’s sense of gender, which may or may not correspond to the person’s assigned sex at birth, or the sex on one’s birth certificate. Transgender refers to people who experience and/or express their gender differently from conventional or cultural expectations either by expressing a gender that does not match the sex listed on their original birth certificate or physically and surgically altering their sex. Even though the number of transgender people are relatively small, they also deserve equal rights and protections against discrimination. Individual employer policies against discrimination to transgender people are a step in the right direction, but these voluntary anti-discrimination policies are just that, voluntary, and they can be changed at any time.

It is important to recognize problems that exist for a person to be married who had gender surgery but has not gone through the proper steps to legally change their sex. Adding this challenge to the issues presently faced by same-sex couples migrating to a state that does not recognize same-sex marriage, even in light of the recent legislation, requires further clarification, expansion, and legislation to protect marital, gender, and equality rights in this newly developing area.

Despite some recent expansion to the laws against discrimination, planning and other issues are not resolved and remain open issues. Section 2 of DOMA has not yet been challenged, and many states still refuse to recognize same-sex marriage performed under laws of other states. The Supreme Court’s decision in Windsor holding Section 3 of DOMA unconstitutional is a big step towards equality for all, yet there is still a long way to go for the LGBT community, and many questions regarding planning, equality, and recognition of marital rights remain outstanding.

For questions, comments or additional information, please contact Kathleen DeLacy, Partner in our Estates & Trusts Group, at or via phone at 302.477.7103.