Is Full Marriage Equality for Same-Sex Couples Next? The Immediate and Future Impact of the Supreme Court's Decision in United States v. Windsor

Abstract

As people across the political spectrum sat on the edge of their seats last summer, the Supreme Court waited until the last possible moment to issue its two same-sex marriage decisions. One, decided on a technicality, did nothing to answer the question of whether same-sex couples have a constitutional right to marry. The other, United States v. Windsor, was a landmark decision, as it struck down Section 3 of the Federal Defense of Marriage Act and found that same-sex couples validly married under state law must have their marriages recognized under federal law. However, the Windsor opinion limits its holding to “those in lawful marriages,” and so has no immediate effect on the laws of the more than 30 states where same-sex marriage is still prohibited. This article will analyze the Windsor opinion and show how it makes it more likely that courts in the future will find that state same-sex marriage prohibitions are unconstitutional.