The Future of DOMA

Posted by Legal Q&A on Monday, July 2, 2012

What do recent court decisions that have found the federal Defense of Marriage Act (DOMA) unconstitutional mean for me as a New Jersey resident in a civil union?

In recent months, federal courts in California, New York and Boston have all found the federal Defense of Marriage Act (DOMA) unconstitutional in different contexts.

In May, the 1st U.S. Circuit Court of Appeals in Boston struck down part of the federal Defense of Marriage Act (DOMA) in a groundbreaking decision, Gill v. Office of Personnel Management, No. 10-2204 (1st Cir. May 31, 2012).

Gill was a legal challenge to federal DOMA’s refusal to recognize valid same-sex marriages from Massachusetts. Gill struck down “section 3” of DOMA, which defines “marriage” and “spouse” for the purposes of federal law.

Section 3 of DOMA defines the term “marriage” as “a legal union between one man and one woman as husband and wife” and defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.”

DOMA’s limited definition of “spouse” and “marriage” means that the federal government will not recognize same-sex marriages, even if validly entered into in the home state of the couple. DOMA also restricts the federal government from granting same-sex married couples the federal benefits it provides to opposite-sex married couples, such the right to receive social security survivor benefits after the death of a spouse and the right to file federal tax returns jointly.

In Gill, the Court determined that Section 3 of DOMA is unconstitutional because it allows the federal government to intrude into marriage – an area historically governed by state law – and the purpose of Section 3 of DOMA seems to be to hurt a disadvantaged group. Therefore, the Court concluded that, “Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The Court stayed enforcement of its decision in Gill in anticipation of an appeal to the United States Supreme Court.

On May 24th, the DOMA suffered another defeat when a federal judge in California held that the DOMA unconstitutionally limits same-sex couples and domestic partners from participating in the long-term care plan offered by the California Public Employees Retirement System.


On June 6th, DOMA was found unconstitutional, yet again, by a New York district judge in case that involved a widow, Edith Windsor, who had to pay more than $363,000 in federal estate taxes after the death of her wife, Thea Spyer.


At this time, the fate of DOMA appears to rest in the hands of the Supreme Court. Assuming that the United States Supreme Court also finds DOMA unconstitutional and the statute is repealed, federal benefits would be granted to married same-sex couples who reside in states that allow their citizens to marry an individual of the same sex.

Currently, New Jersey law restricts access to marriage to opposite-sex couples but allows same-sex couples to enter into civil unions with rights and benefits intended to be tantamount to marriage. The law of New Jersey states:


Civil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.


See N.J. Stat. § 37:1-31

            It appears that the intent of the New Jersey legislature is for civil union couples to have access to all the benefits of marriage. Thus, the repeal of federal DOMA, at least from the perspective of the New Jersey legislature, should allow New Jersey’s civil union couples to access federal rights and benefits incident to marriage. However, one can imagine that, at least, initially, there will be confusion about whether the repeal of DOMA would, in fact, open the door to federal benefits for married couples to couples in a civil union. Perhaps, this is one more reason that New Jersey should allow same-sex couples to marry. 


            Only time will tell how the continued erosion of federal DOMA will affect New Jersey’s Civil Union couples.


If you have specific about your civil union, you may contact Jerner & Palmer, P.C.

By: Rebecca Levin, Esq.

Rebecca Levin is an associate at Jerner & Palmer, P.C., with offices in Marlton and Philadelphia. Her practice is concentrated on Child Support & Custody, Divorce & Dissolution and Domestic Violence & Protection From Abuse.  

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