United States v. Windsor and the Future of Civil Unions and Other Marriage Alternatives

Villanova Law Review Online: Tolle Lege v. 59, 2013

Widener Law School Legal Studies Research Paper No. 13-37

11 Pages Posted: 12 Nov 2013 Last revised: 7 Dec 2013

John G. Culhane

Widener University - Delaware Law School

Date Written: November 11, 2013

Abstract

The Supreme Court's recent decision in United States v. Windsor striking down a crucial section of the Defense of Marriage Act means that validly married same-sex couples are now entitled to the federal benefits associated with marriage. Subsequent decisions by various administrative agencies have construed entitlement to such benefits broadly, so that even couples whose marriage is not recognized in their state of residence can claim several important benefits, including the right to sponsor their spouses into the country for immigration purposes, and the right to file joint income tax returns.

These rights, though, have not been extended to couples who are in civil unions. Even though civil unions were created as a way for same-sex couples to approximate marriage at the state level, it now appears that those in civil unions will not be able to gain the federal benefits of marriage. Thus, it is likely that states that currently recognize civil unions will soon switch to full marriage equality, and it is likely that no states will be added to the civil union roster.

But the civil union has been transformed into something different in three states (Illinois, Colorado, and Hawaii), because the right to enter into these unions has been extended to opposite-sex couples, as well. Since those in opposite-sex relationships chose civil unions over marriage, it is likely that these states will continue to allow the civil union option for both opposite- and same-sex couples. This Essay explores what the continuing presence of civil unions in a few states is likely to mean in the ongoing national discussion about the structure and legal support for various types of families.

Keywords: civil unions, same-sex marriage, family law, marriage, domestic relations

JEL Classification: K19, J12

Suggested Citation

Culhane, John G., United States v. Windsor and the Future of Civil Unions and Other Marriage Alternatives (November 11, 2013). Villanova Law Review Online: Tolle Lege v. 59, 2013; Widener Law School Legal Studies Research Paper No. 13-37. Available at SSRN: https://ssrn.com/abstract=2352948

John G. Culhane (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
(302) 477-2107 (Phone)
(302) 477-2255 (Fax)

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