Windsor was decided just over a month ago and we’re already starting to see how courts are interpreting the ruling. Windsor left unanswered the question of whether Part 2 of DOMA, which allows states to bypass the Full Faith and Credit Clause of the Constitution for same-sex marriages validly performed out-of-state, can stand now that Section 3 of DOMA has been deemed unconstitutional.  [Click here or here for additional information.]

Last week, a federal district court in Ohio ignored an Ohio law that refuses to recognize same-sex marriages, even if validly performed in another state (sometimes referred to as a mini-DOMA). In Obergefell v. Kasich, the plaintiffs, both Ohio residents, briefly traveled to Maryland earlier this month to get married, not even getting off the plane before returning home to Ohio. One spouse was dying of ALS and the other wanted to be recorded as the surviving spouse on the death certificate so they were trying to get married as quickly as possible. Now, for purposes of federal and Maryland law (as well as a handful of other states), the couple is validly married. While this case did not overturn the Ohio law (since it only requested a preliminary injunction and not a judgment on the merits), in evaluating the likelihood of success on the merits, the judge granted the couple’s request. The judge stated that by treating lawful same-sex marriages differently than opposite-sex marriages, Ohio law likely violates the Equal Protection Clause of the Constitution. The judge noted that, as Scalia predicted in his dissent in Windsor, “the issue whether States can refuse to recognize out-of-state same sex marriage is now surely headed to the fore.”

Just yesterday, in the first post-Windsor ERISA case, a federal district court in Pennsylvania ruled that an employer must pay an employee’s death benefit to the employee’s same-sex spouse and not the employee’s parents, when both parties claimed a right to the benefit. In O’Conner v. Tobits, The employee was married in Canada in 2006 and resided in Illinois, which does not recognize same-sex marriage, until she passed away in 2010. The employer’s decision to whom to pay the benefits was complicated by the fact that Illinois does not recognize any same-sex marriage, but its Attorney General refuses to defend the law because she believes the law to be unconstitutional. The employer filed an interpleader action (where all interested parties are included in a case) to have a court decide which party should receive the benefits.  The judge put the case on hold until after the Supreme Court announced the Windsor decision. The court held that ERISA preempted state law entirely and did not need to look to state law for the definition of the term “spouse,” which was not defined in the plan. Even though the employee passed away in 2010 (well before the Windsor decision), the court ruled that since the couple was legally married, the spouse (not the parents) was the proper beneficiary under federal law.