Edith Windsor and Thea Spyer married in Toronto in 2007 where same-sex marriages were legal. At the time of Spyer’s death, the state of New York recognized the couple’s marriage. However, the IRS denied Windsor use of a spousal estate tax exception on the ground that, under the Defense of Marriage Act (“DOMA”), the federal government did not recognize same-sex marriages for the purpose of federal benefits. The Supreme Court is now being asked to decide DOMA’s Constitutionality. The Obama Administration is not defending DOMA, so a Bipartisan Legal Advisory Group (“BLAG”) from the House of Representatives is doing so, arguing that DOMA is rationally related to the legitimate government objective of providing a uniform definition of marriage for federal benefits purposes. The Obama administration counters that the use of sexual orientation to decide who gets benefits is a suspect classification that deserves higher scrutiny. Under that level of higher scrutiny, the Obama administration argues that DOMA is impermissible. This case can affect what role the federal government can play in defining marriage and who in the federal government can defend the government’s laws. Not only could this case provide large tax savings to Ms. Windsor herself, but it can also make federal benefits available to other same-sex couples who are legally married under the laws of their state.
Questions as Framed for the Court by the Parties
Section 3 of DOMA defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case; and whether the BLAG has Article III standing in this case.
The substantive issue is whether Section 3 of the Defense of Marriage Act violates the right to equal protection of same-sex couples who are legally married under state law. The procedural issue is whether the Supreme Court has jurisdiction over this case in light of the executive branch’s refusal to defend the law in court.
Edith Windsor and Thea Clara Spyer first met in New York City in 1963. See Windsor v. United States, 833 F. Supp. 2d 394, 397 (S.D.N.Y. 2012). Having been in a committed long-term relationship, they registered as domestic partners in New York in 1993, the year such partnership status became available. See id. In light of Spyer’s long-term suffering caused by multiple sclerosis and a heart condition, the couple decided to formally wed in Canada in 2007. See id. Spyer passed away in February 2009, leaving Windsor as her widow and sole executor of the estate. See Windsor v. United States, 699 F.3d 169, 175–76 (2d Cir. 2012).
Their marriage was recognized by New York state law but, upon Spyer’s death, Windsor was denied a spousal deduction for her federal estate taxes under a federal law. See id. at 175. This provision allows such a deduction when property passes from the decedent to the surviving spouse. 26 U.S.C. § 2056(A). However, DOMA’s Section 3 states that for the purposes of federal law the words “marriage” and “spouse” refer only to legal unions between one man and one woman. See Windsor, 699 F.3d at 175–76; 1 U.S.C. § 7; http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf.
Because of this definition, when Spyer left her estate to Windsor, the federal government imposed $363,053 in taxes on Spyer’s estate. See Windsor, 699 F.3d at 176. Had the government recognized their marriage, the estate would have qualified for the spousal exemption and Windsor would not have had to pay any taxes. 26 U.S.C. § 2056(A). Windsor commenced this suit seeking a full refund of the federal estate tax and a declaration that DOMA’s Section 3 is unconstitutional under the equal protection clause of the Fifth Amendment. See Windsor, 833 F.Supp.2d at 396-397.
At that time, the government’s position was that DOMA must be defended. Windsor v. United States, 797 F.Supp.2d 320, 322 (S.D.N.Y. 2011); Charlie Savage, In Shift, U.S. Says Marriage Act Blocks Gay Rights, The New York Times (February 23, 2011), http://www.nytimes.com/2011/02/24/us/24marriage.html?pagewanted=all&_r=0. However, the President and the Attorney General eventually changed positions and announced that they would no longer defend DOMA in court. See id. Accordingly, under the direction of House Speaker John Boehner (R-Ohio), BLAG has taken up defense of DOMA. See Windsor 797 F.Supp.2d at 322; see also Ariane de Vogue, Boehner Bolsters Support of Defense of Marriage Act, ABC News (January 3, 2013), http://abcnews.go.com/blogs/politics/2013/01/boehner-bolsters-support-of-defense-of-marriage-act/. After the United States District Court for the Southern District of New York ruled in favor of Windsor on summary judgment, the Second Circuit Court of Appeals affirmed. See Windsor, 699 F.3d at 176; see also Windsor, 833 F.Supp.2d at 406.
The Obama Administration argues Section 3, which defines marriage as between one man and one woman, is unconstitutional under the equal protection clause and advocates for heightened scrutiny of laws discriminating on the basis of sexual orientation. See Brief for the Petitioner, United States on the (On the Merits) at 18. BLAG argues that the Court should apply the lowest level of scrutiny, rational basis review, because the lesbian, gay, bisexual, and transgender (“LGBT”) community is not a protected class. See Brief for Respondent BLAG at 25.
Since all parties agree the Supreme Court has jurisdiction, the Court appointed an amica curiae to argue against jurisdiction. See generally Brief for Court-Appointed Amica Curiae Addressing Jurisdiction. The amica curiae argues there is no injury to Congress if DOMA is overturned, that BLAG violates the separation of powers, and that no Article III controversy exists. See id. at 8–9, 20–21, 24.
DOMA’s Effects on the Economy
DOMA supporters claim the law will save the federal government money by limiting tax savings and avoiding Social Security and other payments to same-sex spouses. See Brief for BLAG at 38–39. According to BLAG,upholding DOMA is in the best financial interests of the government because recognizing same-sex marriages would have a negative net impact on the federal budget. See id. at 39. BLAG argues that while the negative effects cannot accurately be calculated, the uncertain economic effects of overturning DOMA are worrisome enough. See id.
278 businesses are opposed to DOMA and argue the law is another form of government regulation burdening businesses, inevitably leading to the waste of resources. See Brief of 278 Employers and Organizations Representing Employers as Amici Curiae in Support of Respondent (On the Merits) at 25. Businesses are required to treat employees with same-sex spouses as legally married under state law, but as single persons under federal laws, which creates a burden for employers by forcing them to discriminate against same-sex couples when administering healthcare plans and other benefits. See id.at 31.The companies also argue that forced discrimination causes strained employer-employee relationships to the detriment of their businesses. See id.at 14.
The Social Implications of DOMA
BLAG argues DOMA serves a federal interest by preserving traditional marriage to encourage responsible procreation. See Brief for BLAG at 44. Proponents of DOMA believe marriage is about bringing together men and women so children can have mothers and fathers—parents with differentiated roles that are not interchangeable. See id.at 48.BLAG claims responsible procreation is at the heart of society’s interest in regulating marriage because of the inextricable link between marriage and children. See id.at 47.
Those opposed to DOMA argue it is bad social policy and claim that all Americans—regardless of their sexual orientation—deserve the rights afforded to their peers because all are contributing members of society. See Brief for Amici Curiae Leadership Conference on Civil and Human Rights, et al. in Support of Respondent at 20-21. They also argue that burdens placed on members of the LGBT community are based on harmful stereotypes with no basis in the individuals’ abilities. See id.
Proponents of DOMA claim the law protects states’ sovereignty and neither creates a federalism problem nor hinders state autonomy. See Brief on the Merits of Amici Curiae United States Senators Orrin G. Hatch, et al. in Support of Respondent at 21–22. DOMA ensures states can independently decide to refuse same-sex marriages because DOMA allows each state to define marriage for itself under state law, and does not allow any state’s definition to eclipse another’s. See id.; see Brief for BLAG at 30–31.
Those opposed to DOMA claim Congress disregarded federalism concerns, even as legislators in Congress championed states’ rights. See Brief for the Petitioner, United States on the (On the Merits) at 44. Although the policy was born from conservative states’ concern that they might be forced to recognize same-sex marriages from other states, opponents argue DOMA interferes with states’ rights by hampering some states’ decisions to treat all of their citizens equally. See id.at 44–45. State sovereignty, they argue, is impeded by the federal government’s definition of marriage, instead of leaving the definition up to the individual states. See id.
If the Court rules that it does not have jurisdiction because of the Obama administration’s decision not to defend DOMA, the Second Circuit’s ruling would remain in place and DOMA would be considered unconstitutional and unenforceable in the states within the Second Circuit. See Brief for Court-Appointed Amica Curiae Addressing Jurisdiction at 23, 33. DOMA would remain in force in circuits which have not ruled it unconstitutional, which would allow a future case to be appealed to the Supreme Court for which there is jurisdiction. See id.at 38. If the Court holds that there is a lack of jurisdiction, then it will not decide the constitutionality of DOMA. See Brief for Respondent (On Jurisdiction) at 12–13.
Level of Scrutiny
The Obama administration, arguing on behalf of the United States, takes the position that DOMA’s Section 3 is unconstitutional. See Brief for United States on the Merits at 4. The United States advocates for applying heightened scrutiny, which requires a more rigorous justification for laws that use suspect or semi-suspect classifications including race or gender. The United States is arguing that classifications based on sexual orientation should also be subject to heightened scrutiny, which requires the government to show that the classification is substantially related to an important government objective. See id. at 18-19.
According to the United States and Windsor, classifications based on sexual orientation fit all four of the factors the Court has identified to trigger heightened scrutiny. See id. at 20-21, see also See Brief for Respondent, Edith Schlain Windsor (On the Merits) at 17. First, the United States points out gay and lesbian people have been subject to a history of discrimination, including a history of criminal prosecutions for the private and consensual sexual conduct, and other discrimination in employment, immigration, hate crimes, child custody, police enforcement, and voter referenda. See Brief for the Petitioner on Meritsat 20-21. Windsor notes that much of this discrimination has come from the government itself. See Brief for Respondent, Edith Schlain Windsor (On the Merits)at 20. Second, sexual orientation is not related to the ability of people to perform or contribute to society, so the government cannot legitimately take sexual orientation into account for classification purposes. See Brief for the Petitioner on Merits at 27, see also Brief for Windsor on Merits at 22.
Third, sexual orientation is a discernible characteristic that distinguishes gay and lesbian people as a discrete minority group. See Brief for the Petitioner on Merits at 29. The United States contends the distinguishing characteristic need not be immutable or obvious if the characteristic is a distinguishing characteristic. See id. at 30. The United States and Windsor point to scientific consensus that sexual orientation is not a voluntary choice for the vast majority of people. See id.at 31, see also Brief for Windsor on Merits at 22.
Fourth, the United States contends that gay and lesbian people are both a minority and politically powerless. See Brief for the Petitioner on Merits at 32. While the United States does mention success for same-sex marriage initiatives in three states this past November, the United States argues it is more appropriate to look at the longer history of same-sex marriage initiatives where voters have barred same-sex marriage through amendments to state constitutions. See id. at 33-34. Windsor also asserts he political power of gay and lesbian people today is less than that of women when they were granted status as a semi-suspect class. see also Brief for Windsor on the Merits at 29.
BLAG argues that the Court should apply rational basis review to DOMA. See Brief for BLAG at 25. BLAG points out that the Court will apply one of three levels of scrutiny to equal protection cases ranging from heightened scrutiny to rational basis, which requires the government to provide a rational justification for using a particular classification in a law. See id.at 25. When considering issues where sexual orientation was used as a classification in the past, the Court has not specified the level of scrutiny but appeared to apply rational basis review. See id. at 25-26.
BLAG contends the lower court was wrong to apply heightened scrutiny to DOMA See id. at 28. In BLAG’s view, none of the four factors that would qualify a class for suspect treatment are adequate in this case. See id.at 50. Instead, BLAG sees gay and lesbian people as having political power, including the support on the issue of same-sex marriage from the President, Vice-President, and the Democratic Party. See id.at 51. Additionally, popular support for same-sex marriage has increased dramatically enjoying support from 53% of Americans, which has resulted in successful ballot measures, and in BLAG’s view undercutting the argument that heightened scrutiny is necessary. See id.at 52-23. BLAG also notes that it has been over 40 years since the Court has decided a new group should be considered a suspect or semi-suspect class, demonstrating the Court is weary of adding to the very limited list of groups that trigger higher levels of scrutiny. See id.at 49-50.
Whether DOMA Should Survive Review on the Merits
Under the rational basis standard of review, the government needs to demonstrate a legitimate purpose for using the suspect classification, which in this case would be classifying same-sex marriage differently from traditional opposite-sex marriage. See Brief for BLAG at 30. BLAG argues that the legitimate purpose Congress advanced is a uniform national definition of marriage to ensure couples in different states will be treated the same. See id. at 33. Allowing different definitions of marriage would, according to BLAG, allow for the possibility that a same-sex couple’s federal benefits status would change if they moved from one state to another. See id. at 33.
BLAG also points to the historical prevalence of marriage being defined as between a man and a woman as a reason why DOMA’s definition is rational. See id. at 34. Furthermore, BLAG asserts the fact that states have been able to define marriage for the purposes of defining federal benefits in the past does not mean that the Constitution forbids Congress from defining marriage for the purposes of federal benefits. See id. at 36-37. BLAG argues that DOMA merely preserves the ability of each sovereign, including each state and the federal government, to define marriage as the sovereign sees fit. See id. at 31. Additionally, BLAG says DOMA was an attempt to prevent the federal definition of marriage from changing over time. See id. at 38. A single, consistent definition of marriage would prevent more expansive definitions of marriage that could increase the costs of implementing federal benefits based on marital status. See id. at 39. Finally, BLAG argues it was rational to pick a traditional definition of marriage because Congress believed there could be uncertain social consequences if it allowed a definition of marriage that had not been tested in many societies. See id. at 42.
On the other side, the United States argues that DOMA is a violation of the Equal Protection Clause of the Fifth Amendment. See Brief for the Petitioner on Merits at 16–17. The United States contends DOMA’s Section 3 requires that same-sex couples who are married under their states’ law be treated differently from a similarly situated opposite-sex couple and lead to inequality. See id. at 17-18. To demonstrate this inequality, the United States points to a variety of situations where federal benefits can be denied to same-sex spouses including certain Social Security and pension benefits, military service benefits for spouses, and particularly the $363,000 estate tax reduction that is denied to a same-sex spouse at issue in the case presently before the court. See id. at 17.
Next, the United States does not believe tradition alone can justify discrimination. See id. at 39-40. Furthermore, DOMA does not prevent states from allowing same-sex marriage, which provides a weak connection between the stated goal of preserving traditional marriage and what DOMA actually achieves. See id. at 40-41.
Additionally, the United States dismisses the justification of supporting Congress’ general interest in defending the institution of traditional marriage as lacking a sound basis. See id.at 41-42. The legislative record does not contain evidence that denying federal benefits to same-sex couples would encourage responsible procreation or child-rearing. See id. at 42. The United States also rejects the sovereign’s choice argument because sovereign’s choice does not allow the federal government to violate Equal Protection. See id. at 44. Finally, the United States refutes fiscal savings as a justification for DOMA because the federal government cannot single out a group for exclusion to save money. See id. at 46.
If the Court does not apply a heightened standard of review, the United States would not challenge DOMA’s Constitutionality under a deferential form of rational review. See id.at 51. The government does reference past Supreme Court decisions Romer v. Evans and Lawrence v. Texas which suggested a more searching version of rational review could invalidate laws involving discrimination based on sexual orientation, but a more searching rational review would make DOMA unconstitutional for the same reasons as under heightened security. See id. at 53.
Unlike the United States, Windsor argues that Congress did not act rationally or carefully when enacting DOMA. See Brief on the Merits at 35. DOMA is very sweeping, affecting thousands of federal benefits rather than carefully addressing a specific problem. See id. at 36. Also, DOMA departs from the traditional understanding of how the federal government treats a state recognized marriage. See id. at 37.
Role of Federal Government in Defining Marriage
The Court could place special importance on the fact that this is a federal law about marriage, an issue that has traditionally been left to the states, as both the United States and Windsor argue. See Brief for the Petitioner on Merits at 44; see also Brief for Windsor on the Merits at 35. BLAG contends that Congress was acting within its sovereign authority and other groups support DOMA as being allowed under the “Necessary and Proper” clause, which is an expansive provision of the Constitution allowing the government an un-enumerated power so long as that power is necessary and proper to an enumerated power, which in this case is the federal government’s power to tax. See Brief for BLAG on the Merits at 30; see also Brief for Amicus Curiae on the Merits of Citizens United’s National Committee for Family Faith and Prayer et. al. in support of Respondent at 8.
Federal Scholars argue that DOMA is not necessary and proper for Congress to carry out any enumerated power as DOMA affects many different kinds of benefits, not just benefits related to the power of the purse. See Brief for Amicus Curiae Federal Law professors at 12-14. DOMA could therefore be found to be improper as a new, sweeping expansion of Congressional power without requiring the Court to decide whether classifications based on sexual orientation were suspect. See id. at 25.
Whether Jurisdictional Concerns Should Prevent the Court From a Decision on the Merits
Before reaching a decision on the merits, the court could decide that this case is not properly before the Court and remand it for further proceedings because the Obama administration has chosen to enforce, but not defend, DOMA. See Brief for Court-Appointed Amica Curiae Addressing Jurisdiction at 1-2. Members of the House of Repetitive have chosen to defend DOMA on behalf of the government as BLAG. See Brief for BLAG on Jurisdiction. BLAG, the Obama administration, and Windsor all agree that with BLAG defending DOMA and the executive branch enforcing DOMA, there is still a live controversy for the Supreme Court to decide. See Brief for Windsor on Jurisdiction at 19-20. Windsor has a cause of action against the United States government for the recovery of the tax refund. See id. at 36. While Windsor admits she may not have a separate claim against BLAG, BLAG’s participation ensures that the issues are fully argued and the issues are sharpened for the Court. See id. at 20 and 36.
In order to get the alternative view, the Court appointed an amica curiae to argue against the Court’s jurisdiction over Windsor’s case because of the procedural posture. See Brief Addressing Jurisdiction at 1-2. The amica curiae argues that BLAG lacks standing because there is no injury to Congress if DOMA is overturned; members of Congress do not have a personal stake in this litigation. See id. at 8-9. Also, one house of Congress, or in this case a subsection of one house, cannot assert an injury for Congress as a whole. See id. at 15, 17. The amica curiae also contends that in defending DOMA, BLAG would be performing an executive act that violates separation of power principles. See id. at 20-21. The amica curiae further argues that the Executive Branch’s appeal to the judgment of the Second Circuit does not create a “case or controversy” required under Article III for the Supreme Court to decide an issue. See id. at 24.
In this case, the Supreme Court will determine the Constitutionality of Section 3 of DOMA. Windsor argues that DOMA is unconstitutional as it tramples on her right to equal protection under the Fifth Amendment. BLAG argues that DOMA is constitutional and the law should undergo minimal scrutiny under a rational basis test because sexual orientation is not a historically protected class. The Court’s decision may uphold the federal government’s definition of marriage as between one man and one woman, which would continue to allow for each state to decide for itself whether to recognize same-sex unions in its own state and those from other states. Alternatively, the Court may go so far as to fully overturn DOMA and require that each state legally recognize same-sex marriages, which would allow for spouses of same-sex partners to receive a plethora of federal benefits they are currently denied.
The authors would like to thank Professor Michael C. Dorf for his insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
- The Defense of Marriage Act (September 21, 1996) http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/pdf/PLAW-104publ199.pdf
- Michael C. Dorf, Congressional Republicans Offer Three Bad Arguments for Upholding the Defense of Marriage Act, Verdict (February 4, 2013), http://verdict.justia.com/2013/02/04/congressional-republicans-offer-three-bad-arguments-for-upholding-the-defense-of-marriage-act