In 2013, the United States Supreme Court handed down a highly anticipated decision striking down section three of the Defense of Marriage Act (DOMA). United States v. Windsor, 133 S. Ct. 2675 (2013). This controversial case began when the surviving spouse of a same-sex couple was denied federal tax benefits. Edith Windsor and Thea Spyer, two female New York residents in a long-term committed relationship, decided to marry in Canada in 2007. The couple then returned to their home state of New York, which recognized the couple’s marriage. Spyer died in 2009 and left her entire estate to Windsor. Windsor was denied a federal estate tax exemption because section three of DOMA defined marriage as “a legal union between one man and one woman as husband and wife” and defined “spouse” as “a person of the opposite sex who is a husband or wife.” Id. at 2683 (quoting 1 U.S.C. § 7 (2012)). Because Windsor and Spyer were not of the opposite sex, Windsor was not entitled to the spousal exemption. Windsor paid the tax and filed suit for a refund. The district court held that DOMA was unconstitutional and ordered the United States to refund Windsor the taxes she had paid, and the Second Circuit affirmed.
On appeal, the Supreme Court faced a jurisdictional quandary. While the suit was pending in district court, the Office of the President decided not to defend the constitutionality of section three because of its own conclusion that classifications based on sexual orientation should be subject to strict scrutiny, and DOMA could not survive strict scrutiny. In response, the House of Representative’s Bipartisan Legal Advisory Group (BLAG) intervened and argued that the case should be dismissed because the parties were not adverse. The Court rejected that argument and agreed with Windsor that section three was unconstitutional. The Court then held that the Executive had standing to appeal because, although it agreed with Windsor on the merits, (1) it was injured by being ordered to refund taxes, (2) there was a causal connection between the injury and Windsor’s actions, and (3) it was likely that a favorable decision could work to redress the injury. Further, the Court saw no prudential problems in standing that would justify dismissal: the appointment of amici curiae and the intervention of BLAG was sufficient to ensure sufficient adversity; the effects on the rights of thousands of persons demanded immediate review of the law; and allowing a presidential opinion to preclude justiciability would upset the balance and separation of powers.
Subject to certain constitutional protections, the definition and regulation of marriage is an area typically reserved to the states, and the federal government has always deferred to state governments with respect to domestic relations. Windsor, 133 S. Ct. at 2680 (citing Ohio ex rel Popvici v. Agler, 280 U.S. 379 (1930)); see also U.S. Const. amend. X. However, Congress can and does pass laws affecting marital rights, such as laws refusing to recognize marriages entered into only to gain citizenship and laws recognizing common-law spouses as beneficiaries under the Social Security Act. Id. at 2690 (citing 8 U.S.C. § 1186a(b)(1) (2006 & Supp. 2011); 42 U.S.C. § 1382c(d)(2) (2006)). But, the majority reasoned that DOMA went too far because it affected over 1,000 federal statutes and its primary purpose was bare desire to harm a politically unpopular group. State laws recognizing same-sex marriage give same-sex couples a certain dignity and status, and DOMA sought to strip that away by departing from long-established traditions of federalism. Evidence that the essence of DOMA is discrimination is in the Act’s legislative history, stating that the Act’s purpose “was to promote an ‘interest in protecting the traditional moral teachings in heterosexual-only marriage laws,’” and the Act’s title itself. Windsor, 133 S. Ct. at 2693 (citing H.R. Rep. No. 104–664, 12–13 (1996)). DOMA has worked to systematically impose a disability and restrict the freedom of choice of a class of individuals and codify nationwide inequality. Id. at 2694. The law has affected same-sex couples and their children socially and economically. Id. at 2694–95. For these reasons, the majority found that section three of DOMA violated the Equal Protection clause of the Fifth Amendment and affirmed the holdings of the lower courts. Id. at 2696.
In dissent, Chief Justice Roberts disagreed that the Court had jurisdiction. Roberts also argued that the government’s purpose in enacting DOMA was not as sinister as the majority believed—the government had an interest in uniformity and stability in enacting the law, and it is not surprising that the government treated this important issue as something that should not be left to the states like consanguinity and a minimum age for marriage. Id. at 2696–97.
Justice Scalia agreed that the Court did not have jurisdiction and argued that, even if it did, it could not invalidate legislation adopted through the democratic process. Scalia argued there is no case or controversy because the two sides agree, and therefore, there is no Article Three standing. The fact that the Court decided the case anyway, Scalia argued, is “jaw-dropping,” as the Court has never before assumed the power to say what the law is without a case or controversy. Id. at 2698–99. Scalia argued this was not a prudential requirement of standing, but rather an essential one. On the merits, Scalia argued the majority’s opinion was “rootless and shifting,” and he expressed confusion over whether the opinion was based on principles of federalism, substantive due process, or equal protection. Id. at 2705. Scalia insisted that the Constitution does not forbid the government from enforcing “traditional moral and sexual norms,” and that there were plenty of valid reasons for DOMA, such as avoidance of difficult choice-of-law issues and preservation of “intended effects of prior legislation against then-unforeseen changes in circumstance.” Id. at 2707–08. He argued that “to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements . . . .” Id. at 2708.
Justice Alito expressed his agreement with Scalia that the Court did not have jurisdiction. On the merits, Alito argued that same-sex marriage was not a constitutional fundamental right, and that such an important change in policy should be made by the legislature’s elected officials, not appointed federal justices.
Regardless, same-sex couples may no longer be denied the rights guaranteed to opposite-sex married couples in states recognizing same sex marriage. Windsor also opened the door for more states to recognize same-sex marriage. At the time of the June 2013 opinion, nine states and Washington, D.C. recognized same sex marriage. Since that time, nine more states recognize gay marriage: by judicial decision in California, New Jersey, New Mexico, and Utah; and by state legislatures in Delaware, Hawaii, Illinois, Minnesota, and Rhode Island.
Special thanks to Jamie Vaughan for her assistance in preparing this blog post.