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June 01, 2015

Same-Sex Marriage is Fundamental under the Constitution

“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  
Obergefell v. Hodges 576 US _____ (2015)

In the historic decision, Obergefell v. Hodges, Justice Kennedy stated that there were four principles and traditions that demonstrate the reason marriage is a fundamental right under the Constitution: (1) the right to personal choice inherent in the concept of individual autonomy; (2) the right to enjoy intimate association; (3) safeguards for children and families; and (4) marriage as the keystone of the Nation’s Social Order.

    At the time of the decision, fourteen state and three territories prohibited same-sex marriage. This shift in law opens more benefits to all same-sex married couples. Below is a short discussion highlighting some changes in different areas of law, following Obergefell. Marriage By the time this article is published, it is hoped that same-sex marriage licenses will be offered in all states. It may still take some time for each jurisdiction to issue marriage licenses. Same sex-married couples will be allowed to be listed on death certificates as the surviving spouses. Same sex married couples who wish to legally dissolve their marriages can file for divorce in all states, subject to state laws.


    Experts still recommend that every parent who is not the biological parent should still proceed with adoption or a court judgment of parentage. Not all states recognize a non-biological parent, even when the parents are married. Also, if the parents move or travel, parental rights may differ in each state.

    Every state does require that when a married person gives birth, the person’s spouse must be listed as a parent on the child’s birth certificate. Whether this requirement will be respected for all families, after this ruling, is an unanswered question.


    If there is a marriage and one of the parents is the child’s only legal parent, the other parent should now be able to get a stepparent adoption. The other parent will need to meet the requirements under state law for stepparent adoption.

Federal Benefits

    Federal benefits, such as Social Security or veterans benefits, should be available immediately. However, it is important to note that benefits may have marriage duration requirements before one can apply. For individuals who were denied veterans benefits prior to this decision, because of the location of the person’s residence when the right accrued (place of residence standard), further guidance will likely be issued as to how to reapply for the benefits.

    Similarly, for those who were denied Social Security benefits prior to the ruling while living in a nonrecognition state, further guidance will likely be issued.

Retirement Benefits

    If the retirement plan is through a private employer, federal law required recognition of same-sex married spouses by December 31, 2014. There are US Department of Labor and IRS rulings and guidance on these matters. For federal government employees, the Office of Personnel Management required recognition of same-sex married spouses. For state or local governments, the plan may or may not have recognized same-sex spouses. These plans should now be required to respect same sex marriages and treat same sex spouses equally. For church or other religious organizations, the question is much more complicated and the issue is whether or not their plans are subject to federal law. It is recommended that these plans be reviewed by an attorney if there are any questions. There may also be marriage duration requirements in the plans before the same sex spouse becomes eligible.

Health Insurance

    If the employer offers health insurance to those of different sex spouses, it will be required to offer health insurance to same sex spouses.

Income Taxes

    Since United States v Windsor (570 U.S. ___ (2013), same sex married couples have been required to file as “married filing jointly” or “married filing separately” on the federal returns. Now under state law, couples should be allowed to file jointly. For state taxes, married couples should review their filing status and claimed allowances and withholdings.

    Please note that the IRS stated that those who are in civil unions or domestic partnerships were not considered married for federal filing status.

Property Rights

    In states that have community property, same sex married couples should review their holdings to see what property may be subject to those rules. Additionally, same sex married couples can also choose to hold property as joint tenancy by the entirety in states that allow it.

Trust and Estate Planning

    After Windsor, many trust and estate planning options exist on the federal level under the Internal Revenue Code, including its provisions for estate taxes, as well as those for gift taxes. Trust and estate planning opportunities, including for estate taxes and gift taxes, now also exist at the state level. Further, on the state level there is an expansion of spousal recovery under intestate succession laws, unlawful death statutes, and interment rights.

    While the Obergefell decision is a big first step, there are still many areas in which LGBTQ persons need to battle for equal rights. As we saw immediately after the Obergefell decision, many state court house clerks were still refusing to issues marriage licenses. The battle will continue to have equal rights for all persons.


Elizabeth Lindsay-Ochoa

Commissioner, ABA Commission on Sexual Orientation and Gender Identity