Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality
Nancy J. Knauer
Temple University - James E. Beasley School of Law
August 28, 2014
Georgetown Journal of Gender and the Law, Vol. 16, 2014, Forthcoming
Temple University Legal Studies Research Paper No. 2014-28
When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (e.g., Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws where some states allow marriage, others ban it, and others have created parallel legal categories that grant some or all of the rights of marriage (e.g., civil union, domestic partnership, reciprocal beneficiary).
The post-Windsor complexity and lack of uniformity has left LGBT individuals to navigate an uncertain and rapidly changing legal landscape. With over thirty marriage cases pending in federal courts across the country, and positive decisions from many conservative federal District Courts, it seems that the U.S. is poised for nation-wide marriage equality within the next several years. Although many members of the media have already declared that the struggle for LGBT rights has been won, this article explains why these reports are not only premature, but miss the mark by conflating marriage equality with the larger LGBT rights movement. It details both the promise of marriage equality and its limitations.
Number of Pages in PDF File: 48
Keywords: same-sex marriage, marriage equality, LGBT, civil union, domestic partnership, U.S. v. Windsor, elder law, LGBT elders, DOMA, LGBT aging, same-sex couples, marriage penalty, social security, retirement planningAccepted Paper Series
Date posted: June 11, 2014 ; Last revised: August 29, 2014
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