US v. Windsor: a Landmark Decision or Merely a Signpost?


“You cannot stand for civil rights and not support gay marriage. You cannot stand for human rights and not support gay marriage. It’s that simple. Everywhere, the voice of the oppressed must echo and ring out or else it will be crushed by the tyranny of wickedness.”

– Bernard Schaffer

On the 26th of June, the United States Supreme Court handed down its decision over the highly anticipated case of US v. Windsor. This case was brought forward by Edith Windsor, a US citizen who had married her female partner in Canada and had lived with her in New York before the partner’s death in 2009- the same year in which the state of New York began legally recognising same-sex marriages performed in different jurisdictions.

In spite of this, however, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of her wife’s estate. This is due, in the large part, to the Defense of Marriage Act, passed in 1996. This federal law contained a provision defining marriage as a union between a man and a woman, ultimately alienating same-sex couples. The issue brought towards the Court was therefore over the nature of same-sex marriages, and the lawfulness of their treatment. Should same-sex couples receive the same federal benefits as their heterosexual counterparts?

The decision handed down by the Court had the effect of striking down this particular clause of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, to be unconstitutional. The court has the constitutional authority to do this due to its judicial review power, and as a result, this controversial provision was declared null and void. The decision is undoubtedly one that will be hailed in history as a “landmark” decision; indeed, many have already dubbed it as a progressive and even revolutionary stepping stone in the fight for LGBT rights. But is this assessment of the decision a fair one?

Ultimately, this proposition can be brought into question. The immediate effect of the decision will be that same-sex married couples living in states which legally recognise their marriage will have the right to enjoy the federal benefits enjoyed by heterosexual couples; for instance, immigration rights, federal benefits for married couples, bedside hospital visitation rights and tax breaks. The importance of this cannot be doubted and goes a long way in recognising the right of same-sex couples to establish and maintain a family.

However, in terms of being as progressive a decision as many have deemed it to be, the Windsor decision falls short in some respects. The Court did not rule that LGBT citizens have fundamental equal protection rights under the law, nor does it explicitly set out that all state legislatures should pass laws legalising same-sex marriage. Furthermore, the decision has no immediate effects on couples living in states which do not recognise gay marriage. For instance, a same-sex couple living in South Carolina, where gay marriage has not been legalised, would only reap the benefits of the decision in the circumstance where the state legislatures decided to legalise gay marriage. In this respect, the decision is not quite as revolutionary and progressive as many have hailed it as.

But many have argued that even if the legal consequences of the decision will not immediately have an impact upon the status of same-sex couples across the United States, its symbolic importance in undeniable. The essential message of five out of four Supreme Court justices is that regarding the marital union between same-sex couples in any way apart from equal to that of heterosexual couples is unjust, and this must be reflected in state laws. By extension of this logic, it must be seen that all citizens are treated equally before and by the law, irrespective of their sexual orientation. And as Manil Suri has argued in his New York Times op ed piece, this sends out a message to the international community about where the Free World stands on the issue of gay marriage. Therefore, the Windsor decision could act not only as a prompter for other US states, but other nation states as well. From whatever angle you examine it from, the case can be regarded as a turning point for LGBT rights.

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