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, according to the Supreme Court. The Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” The decision extends the right to marry to the 14 states that currently do not allow or recognize same-sex marriages. In addition, the Court found that there was no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character. Thus, this ruling effectively nullifies Section 2 of the Defense of Marriage Act (P.L. 104-199), which allowed states not to recognize same-sex marriages legally performed in other states.


In 2013, the Supreme Court struck down as unconstitutional, on equal protection grounds, Section 3 of DOMA, which statutorily defined marriage for purposes of federal law, including tax law, as a legal union between one man and one woman. As a result, the federal government had to recognize same-sex marriages performed in jurisdictions that allow them. In response to Windsor, the IRS adopted a general rule recognizing any marriage entered into in a state whose laws permitted same-sex marriages, even if the couple was domiciled in a state that did not recognize them.

The opinion, written by Justice Anthony Kennedy, and joined by Justices Breyer, Ginsburg, Kagan and Sotomayor, noted that, throughout history, the states have made marriage the basis for an expanding list of governmental rights, benefits and responsibilities, including taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; survivors rights and benefits; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. The opinion opined that states contributed to the fundamental character of the marriage right by placing the institution at the center of the legal and social order and that there is no difference between same- and opposite-sex couples with respect to this principle. The Court found that, “by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the states have linked to marriage.” Although each of the four dissenting justices issued separate opinions, they agreed that the decision on whether to allow same-sex marriage should have been left to voters, rather than the Court.

Tax Consequences

For federal tax purposes, legally married same-sex couples are recognized as married regardless of their state of residence. Thus, the practical tax effects of this decision are largely state-related. The ruling has the effect of rendering the “state of celebration rule” ineffective; all states must now recognize same-sex marriage regardless of where the couple was married or their state of domicile. The ruling does not affect a couple’s filing status for federal tax purposes, as the people who were married in a state recognizing same-sex marriage have been entitled to the federal tax benefits of marriage since Rev. Rul. 2013-17, I.R.B. 2013-38, 201, which was issued in response to Windsor.

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