On June 26, the U.S. Supreme Court decision United States v. Windsor determined that, in those states of the Union that approve same-sex marriages, federal legislation is obliged to treat them as marriages as well. The ruling declared unconstitutional a provision of the Defense of Marriage Act (DOMA) which, as far as the application of federal law was concerned, reserved the word "marriage" to "the legal union between a man and a woman". While it would not be accurate to say that the ruling recognizes same-sex marriage - that is a skill of the states - it is a clear endorsement of those who approve of it. With four of the five justices who make up the Supreme Court voting against the decision and the opposition of important sectors of society, it cannot be said, however, that this decision has been received without some controversy.

At the origin of the Windsor case is the marriage between Thea Spyer and Edith Windsor in Ontario (Canada), link whose validity was recognized in her state of residency program, New York. After Spyer's death in 2009, Windsor requested the application of exemption of the Federal Inheritance Tax provided for spouses, a request that was denied in application of the DOMA. She then filed a lawsuit requesting the declaration of unconstitutionality of the conflicting rule , resource which culminated in the Supreme Court's upholding of her application . In summary, the High Court held that DOMA creates a "separate status and, therefore, a stigma on those who enter into same-sex marriages". On a matter that, in my opinion, bearsa certain analogy, the Grand Chamber of the European Court of Human Rights, conference room , ruled differently in 2008 in the Burden and Burden v. United Kingdom judgment. framework At issue was the non-application of the inheritance tax exemption - provided for same-sex couples and married couples - to two unmarried sisters who had lived together "all their lives, in a stable, solid and mutually supportive relationship". A divided European Court also held that, in this case, there were no grounds for claiming equality of attention. This is because "one of the defining characteristics" of marriage and civil unions "is that these forms of union are forbidden to persons who are closely related". From my point of view, this explanation does not seem entirely satisfactory, considering that it was precisely the aforementioned defining "characteristic" that was being questioned. Strictly speaking, I honestly believe that the Strasbourg Court did not succeed in pointing out any property deserving of a specific tax attention that, being present simultaneously in marriages and homosexual unions, was not also present in the lasting cohabitation between siblings. "The determining element - said the Great conference room- is the existence of a public commitment, linked to a set of rights and obligations of a contractual order". If this was the decisive quality, if what was decisive was the formal public contract, it remains to be justified why the Burden sisters were prevented from entering into such a commitment.

In Windsor, the U.S. Supreme Courtconsidered it "stigmatizing" for the federal legislature to distinguish between two kinds of marriages where states allow homosexual marriages. Leaving aside the federal question, the basic idea underlying its decision is that both relationships have the same features: an intense affective relationship (1st), long-lasting cohabitation (2nd) and mutual solidarity (3rd). It should be noted that these three notes were also present in Burden, and yet the ECtHR's decision was dismissed. What, then, is the logic that seems to require equal treatment in one case and yet justifies the differentiation in the other?

Beyond these characteristics, what qualified the relationship of the Spyer-Windsor couple with respect to the union of the Burden-Burden couple was the sexual expression of their affection. And, beyond the sexual expression of their affection, what qualified the DOMA marriages with respect to the Spyer-Windsor couple was the membership even subject of a relationship fit, in genere, for reproduction. Which of the two distinguishing features "sexual expression of affection or aptitude general natural for reproduction" deserves a specific legal regulation? It can hardly be the first, since it would be manifestly contrary to the right to privacy for the State to question a couple if they engage in sexual relations. If the tertium comparationis that justifies the differentiation were the sexual expression of affection, other forms of sexual cohabitation would have to be "matrimonialized", overcoming taboos and restrictions. If, on the contrary, the determining feature were the natural general aptitude for reproduction, it seems difficult to argue that the DOMA was discriminatory. As can be seen, the principle of equality leads to different ports: it all depends on the trait we consider relevant.