The US Supreme Court issued their decision today in US v. Windsor regarding the federal government’s right to deny benefits to legally married same sex couples. SCOTUS ruled that section three of the Defense of Marriage Act, the section that prohibits same sex federal benefits, is unconstitutional on the grounds of equal protection. This is a monumentous day for same sex couples – giving same sex marriages equal status with heterosexual marriages at the federal government level. This decision is not binding on Texas state law, however. Section 2 of DOMA says that states do not have to recognize same sex marriages from other states, and that section still stands today. The Windsor opinion gives hope for the future of the rights of LGBT couples to marry (and divorce).

James Esseks , Director of ACLU Lesbian Gay Bisexual Transgender & AIDS Project interpreted it this way:
• “The core provision of DOMA required the federal government to treat the marriages of same-sex couples one way (as though they had never happened) and the marriages of straight couples a different way (respecting their validity in 1,138 federal contexts). The Supreme Court struck down DOMA both because of that unequal treatment and because the federal government had improperly taken over the states’ normal role of deciding who is married and who isn’t.”
• “The demise of DOMA section 3 is also a crucial milestone on the road to LGBT equality because DOMA is the last federal law that requires discrimination against lesbian, gay, and bisexual people. That makes the Windsor decision, which wipes away the core of DOMA, the capstone on decades of work to rid the country of codified anti-gay discrimination at the federal level.
• “So Windsor isn’t just the death of the core of DOMA, it’s the end of official federal discrimination against lesbians and gay men. That’s quite something to celebrate!”

Read DOMA Unconstitutional!

As I predicted in my blog post in March – DOMA – does it matter in Texas – this opinion has little effect on each individual state’s right to pass their own laws about same sex marriages. Until there is a challenge to Section 2 of DOMA, squarely challenging DOMA’s overriding of the full faith and credit clause of the US Constitution, same sex couples are stuck with the status quo in Texas. A couple who is married in a state that recognizes same sex marriages, who then moves to Texas and breaks up, cannot get divorced under Texas laws.

The next big thing on the horizon in same sex rights in Texas will be the Texas Supreme Court’s opinions in In re J.B. and H.B. and State v. Naylor and Daly. It is widely perceived that the Texas Supreme Court has been holding their decisions in these two cases about same sex marriage, pending the US Supreme Court’s opinion in Windsor. The Texas Supreme Court will have to interpret the US Supreme Court’s verbiage in determining the challenge to section 2 of DOMA raised in those cases. We can expect that these cases will be appealed to the US Supreme Court for the next term, raising squarely the challenge to section 2 of DOMA.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.