The Second Circuit Court of Appeals ruled that the Defense of Marriage Act (DOMA) is unconstitutional in Windsor v. U.S., 109 AFTR 2d 2012-2475 (2nd Cir. 2012). The plaintiff in Windsor contested the constitutionality of DOMA based on her payment of $350,000 in federal estate taxes because her deceased partner was not recognized as a spouse for federal tax purposes. The court applied a heightened level of scrutiny to determine that DOMA is discriminatory against homosexuals.

REINHART COMMENT: The First Circuit Court of Appeals previously held DOMA unconstitutional in Gill et al. v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012). Following these circuit court decisions, the Supreme Court may grant certiorari on these cases in order to consider the validity of DOMA. Plan sponsors should be aware that a change in the validity of DOMA could affect various aspects of employee benefits, including the federal tax treatment of benefits, COBRA rights and qualified domestic relations orders.