Board of Contributors: The Conundrum Created By The Windsor Decision

In the recently decided Windsor case, marriage was referred to as “a dignity and status of great import.” The decision qualifies same-sex married couples to more than 1,100 federal benefits. Responding to Windsor, federal agencies have started to issue and implement policy and procedure. Some believe that the regulation of marriage by federal and state agencies serves largely economic purposes.

Earlier this month, the Social Security Administration announced that it will begin processing claims and payments to same-sex married couples. The Defense Department announced an extension of family benefits to same-sex married couples, including civilian employees. The Pentagon, backed by the Joint Chiefs of Staff, will grant military personnel in same-sex relationships seven days of leave to legally marry.

However, since same-sex marriage is still not recognized in 37 states, including the entire South, many military couples face continuing discrimination and inequality by having their marriage federally recognized while on base, but not by the domiciliary state.

Windsor created confusion for the courts and couples. Though Justice Anthony Kennedy’s ruling seemed to sanction discrimination against same-sex married couples, the opinion confirmed that states retained jurisdiction over marriage policy. The decision emboldened opponents of marriage equality, especially in states less inclined to sanction same-sex marriage. Critics complain that the majority overstepped Congress’ authority to pass laws.

Building on the victory, however, supporters are taking the battle to the state capitals and lower courts. Lawsuits were filed in more than 13 nonrecognition states, claiming that they are being denied the basic rights that are afforded by marriage.