Gay Marriage and the U.S Supreme Court


The case of Windsor v United States that came to its conclusion in June 2013 is a landmark case about same-sex marriages mainly due to the outcome of the case and its far-reaching implications on elements of justice in the future of the American justice system. Although cases on same-sex marriages mostly present civil elements in terms of the application of laws, the Windsor case also created implications regarding procedural elements in the American criminal justice system due to the tax matter that formed the basis of the case. The case was also indicative of the ruling’s transformational character for the incorporation of new cultural norms in the community.

The case

Edith Windsor and Thea Spyer lived in New York as a same-sex couple at the time of Thea’s death. The couple had undergone a legal marriage in Ontario, Canada, in 2007 under the Canadian Civil Marriage Act. However, the two had lived together as a couple for several years before the marriage. Two years later, Thea passed on, leaving her federal estate tax exception for Edith, the surviving spouse. However, Section 3 of the Defence of Marriage Act (DOMA) barred Edith Windsor from obtaining such exception.

The Internal Revenue Authority went ahead to demand $363,053 in estate taxes, which Windsor paid, but she filed a suit in court for a refund of the sum. Section 3 of DOMA provides definitions for the terms “Marriage” and “Spouse”, for which couples of the same sex do not qualify under the Act’s definition of marriage. The Act only recognizes marriages that comprise two individuals of the opposite sex. The Internal Revenue Authority used the Act as its basis for denying Windsor the estate tax exception.

The main issue that Windsor indicated when filing her suit for the refund in November 2010 was that the federal government had discriminated against a legally married couple due to their sexuality, thus resulting in a denial of the rights that heterosexual couples would get in the same situation. Although Windsor did not raise the issue of the government’s interference with personal liberties of individuals in the US, the court noted the issue as pertinent in the case. Another issue that the case displayed is the government’s power to create laws that define the social structure of American society with little explanation as to the intention of officials who formulate such laws.

On 23 February, the United States Attorney General, Eric Holder, issued a statement indicating the Obama administration’s intention to do away with Section 3 of DOMA on grounds of its infringement on the spirit of equality, which is set out in the Fifth Amendment’s due process clause. In the statement, the Attorney General also indicated the administration’s intention to withdraw from further defense of the law. In June 2012, a judge (Barbara S. Jones) made a ruling declaring the unconstitutionality of Section 3 of DOMA. Although the matter still proceeded to the U.S Second Circuit Court of Appeal and later to the U.S Supreme Court, the courts upheld the decision. The U.S Supreme Court made a 5-4 decision supporting the law’s unconstitutionality.

The landmark decision has altered the course of civil justice, especially for states with laws that support same-sex marriages. However, the law does not oblige states against same-sex marriages to accept the marriage status for couples that legally marry in other states. The success of the Windsor case was largely due to the legality of the same-sex marriages in the state of New York.


Marriage is a civil matter and thus it comes as no surprise that the decision mostly affects the US civil justice. One of the decision’s outstanding implications is that it affords couples from same-sex marriages the same rights as heterosexual couples in same situations. Couples of the same sex can now enjoy tax exceptions and citizenship for parties for immigrants who marry American citizens. The only notable limitation to this implication is that it only applies to states in favour of the same sex marriages.

Secondly, the decision displays the Supreme Court’s power to revise or overturn laws that limit society’s liberties as it evolves in accordance with the constitution. This aspect enables the inclusion of elements that would, however, cause strife in society such as same-sex marriages. Although frowned on the act of marriage between individuals of the same sex, the same has now become common in most part of the US as part of people’s liberty to choose their sexuality.

The ruling also presents some implications to criminal justice one of which is conflict of laws amongst federal governments. One of the rules of criminal law is that spouses may not testify against each other during criminal trials. As such, it is possible for a couple to evade justice through relocation in the case of the same-sex marriages, where federal laws recognize the union. In addition, it is difficult – albeit not impossible, to determine applicable laws for couples in such unions who perform crimes in one state, but reside in another. Conflict of laws also creates a problem with regard to immigration rules. Men or women from other countries who marry partners of the same sex obtain American citizenship by default of their marital status. However, just like their marital status, the provision only applies in states that recognize same-sex marriages. It is thus possible for an immigrant who obtains citizenship through such marriages to undergo deportation in other states.

Another implication specific to criminal justice relates to the issue of sodomy regarding male spouses of the same sex. Marital rape is one of the most controversial topics in criminal law. In most cases, it is difficult to establish lack of consent that is characteristic of rape. Conjugal rights consist some of the essential components of marriage necessary for consummation purposes. In the past, most states in the US had invalidated consensual sexual behaviours between males by classifying the same as sodomy.

The measure was a means to protect the society’s moral fibre and males from sexual violation by other men. In 2003, the Supreme Court overturned such laws in the US terming them as a violation of the 14th Amendment through the decision in Lawrence v Texas. The police had arrested John Lawrence and Tyron Garner at Lawrence’s home and charged them with ‘deviate’ sexual behaviour. However, in same-sex marriages, especially those involving men, it is difficult to establish lack of such consent due to marital status and presence of the appropriate age in sodomy.

Effects of changes on actors in the criminal justice system

Although mainly a civil issue, the change in Section 3 of DOMA affects various actors in the criminal justice system in various ways. First, same-sex marriages increase the federal government’s difficulty in establishing genuine candidates for marriage without raising issues of discrimination. In turn, there is bound to be a rise in cases of tax fraud offenders. The existence of the same-sex marriages makes it difficult for the government to prove the existence of a romantic affair between two people regardless of sex. Additionally, same-sex marriage laws present a form of vulnerability for states that legalize it in terms of presence of immigrants in the states under the guise of marriage.

Secondly, the allowance of marriage benefits for same-sex marriages increases the prosecution’s difficulty in obtaining evidence for crimes under criminal law. The law provides that married individuals cannot testify against each other in a court of law on criminal matters. The reason behind this provision is to protect the sacred nature of marriage and marital secrets that come with it, without compromising the objectivity of evidence collection during sensitive matters that often require proof beyond a reasonable doubt. However, people sometimes take advantage of this provision and apply it to their advantage. Often offenders would marry witnesses of the opposite sex to prevent the state from collecting their evidence or requiring them to appear before a court of law as witnesses.

Thirdly, the laws create an indirect problem for concerned citizens, through the creation of an avenue that provides more opportunities for immigrants to gain citizenship. Since marriages consisting individuals of the same sex make it difficult for federal authorities to establish proper motive for marriage, the number of immigrants that gain citizenship through it is likely to rise. A rise in the population often has the effect of straining the existent resources for citizens, thus creating a rise in crime rate within states that permit such marriages.

Although marriages between individuals of the same sex constitute exercise of personal rights to liberty and privacy, it indirectly affects concerned citizens, regardless of sexual orientation. Garth McVicar, the leader of the lobby group known as Sensible Sentencing Trust, creates a link between gay marriages and rise in crime rates by indicating that approval of laws supporting same-sex marriages creates a likelihood of increase in child molestation, domestic violence, and breakdown of the marriage institution. Although the lobbyist uses New Zealand as the basis of his opinion, similar effects may occur in the United States.

Another way in which the law affects the concerned citizens is through erosion of moral values that society holds dear. For a long time, society has viewed marriage between individuals of the same sex as a taboo mainly due to the sexual implications that the concept suggests. Some of the states that oppose same-sex marriages justify their position by explaining that leniency on the issue is likely to create the image of society’s leniency on other aspects infringing on society’s moral fibre such as prostitution and bestiality. Prostitution bears similarities to gay marriages in the sense that it also concerns personal privacy, sexuality, and consensual practices between adults. States such as Michigan and Virginia are some of the few that opt for strict laws regarding the matter as a means of protecting society’s moral fibre.

The decision affects judges by making their task harder during criminal trials, majorly due to differences in federal laws in various states coupled with personal perceptions of morality. Although impartiality is a virtue that all judges should possess, separation of personal prejudices on issues regarding morality with the backing of society makes it harder for judges to make objective and impartial decisions on the matter. For instance, most present judges grew up during the era when most societies condemned same-sex marriages. It is thus easy for such individuals to criminalize the concept without proper consideration of the parties involved in the act. It is also difficult for the same judges to establish laws that best apply to the matter without prejudice.

On a different note, the case also presents some positive aspects for the criminal justice system especially for the attorneys defending clients such as Windsor. This assertion holds as the landmark case has created a precedent that attorneys can use in defence of aspects in criminal cases such as benefits that apply to couples in heterosexual relationships with regard to evidence from spouses. It has also opened up a gateway for reviews for past decisions regarding the same topic involving individuals in a legal same-sex union.

Lastly, the ruling has also provided a means for legal redress by victims under similar situations whose issues arise from denial of rights in the criminal justice system, which appear available for other married couples in similar situations. The retrospective nature of the justice system provides an avenue for individuals jailed through evidence from their partners to review such cases with a possibility of acquittal. It also provides hope for justice for victims living in states that consider same-sex marriages illegal.

Personal opinion

In my opinion, although the decision in the Windsor case indicates a milestone in the justice system through support of personal liberties, a look at the greater picture reveals possible implications in areas of the justice system that most people overlook. Although marriage is primarily a civil issue, the concept of the same sex marriages has far-reaching implications and affects stakeholders in the justice system directly and indirectly.


Crandall-Hollick, Margot, Molly Sherlock, and Carol Pettit. “The Potential Federal Tax Implications of United States v. Windsor (Striking Section 3 of the Defence of Marriage Act (DOMA): Selected Issues.” Congressional Research Service (2013): 1-13. Web.

Haque, Adil. “Lawrence v. Texas and the Limits of the Criminal Law.” Harvard Civil Rights-Civil Liberties Law Review 42 (2007): 1-42. Web.

Joslin, Courtney. “Windsor, Federalism, and Family Equality.” Columbia Law Review 113, no. 156 (2013): 156-179. Web.

Young, Ernest. “United States v. Windsor and the Role of State Law in Defining Rights claims.” Virginia Law Review 99, no. 1 (2013): 39-47. Web.

Young, Ernest, and Erin Blondel. “Federalism, Liberty, and Equality in United States v. Windsor.” CATO Supreme Court Review (2012): 117-147. Web.

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LawBirdie. "Gay Marriage and the U.S Supreme Court." March 24, 2023.