Supreme Court Rules on the Defense of Marriage Act

What started out as a tax refund suit came to a dramatic and far-reaching conclusion on June 26, 2013 when the Supreme Court of the United States held that the federal Defense of Marriage Act (DOMA) is unconstitutional.


Prior to DOMA, the definition and regulation of marriage was treated as being within the authority and realm of the individual States. In 1996, however, President Bill Clinton signed DOMA into law. As a result of §3 of DOMA, the definitions of "marriage" and "spouse," for the purpose of constructing federal laws and regulations, excluded same-sex partners. But in early 2011, the Department of Justice announced that it would no longer defend the constitutionality of §3.

Supreme Court's Ruling

The Supreme Court's ruling (link http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf) found §3 of DOMA, which provided that only opposite-sex marriages were recognized for federal law, to be unconstitutional. However, §2 of DOMA, which allows a State to refuse to recognize the validity of same-sex marriages that were legally performed in another State, was not at issue in this case. As a result, the ruling creates as many questions as it answers, such as:

  • Whether married same-sex couples are entitled to refunds on federal taxes previously paid?
  • Whether a person may seek reimbursement for qualified expenses incurred by a same-sex spouse from an FSA and/or HRA that were previously denied?
  • What's the effective date for such determinations (e.g., the date on which the couple was married)?
  • And what implications does this ruling have on the administration of tax-advantaged benefits, such as the Health FSA?

These, and similar questions, must still be addressed by the federal government and various state agencies.

Current State Treatment of Same-Sex Marriages

The following States permit same-sex marriage to be performed in that State:
CA, CT, DE (7/1/2013), IA, ME, MA, MD, MN (8/1/2013), NH, NY, RI (8/1/2013), VT, WA and DC.

The following States (and Territory) do not permit same-sex marriage to be performed in that State (or Territory) and do not recognize same-sex marriages that were performed in another State:
AL, AK, AZ, AR, FL, GA, HI, ID, IN, KS, KY, LA, MI, MS, MO, MT, NE, NC, ND, OH, OK, PA, SC, SD, TN, TX, UT, VA, WV, WY and Puerto Rico

The following States recognize same-sex civil unions that offer some protections for same-sex couples, including same-sex couples married in other States:
CA, CO, HI, IL, NV, NJ and OR

OPM Guidance

The first hint of the Administration's application of this decision to the issue of benefits appeared on July 1, 2013 in an 8-page memorandum issued by the United States Office of Personnel Management (OPM). This memo is not official guidance on the subject. Rather, it is the application of the decision to one (albeit a very large and important) employer. The full memo is available at: http://www.opm.gov/retirement-services/publications-forms/benefits-administration-letters/2013/13-203.pdf.

The OPM memo immediately extends federal benefits to same-sex spouses, without regard to state of residence.


As benefit specialists, we are carefully following the application of this ruling and any subsequent guidance that may be issued. In the absence of guidance, we have immediately implemented processes that mirror those set forth in OPM's memo. This means that a claim that is submitted for a spouse and accompanied by the certification that it is for eligible expenses and dependents, will be paid regardless of the state of residence. We will be closely watching the release of guidance from government agencies to determine if any adjustments need to be made to this approach. We will continue to keep you apprised of this issue and how it may affect you and your employees as additional information becomes available.

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