The ABCs of DOMA: A Summary of United States v. Windsor
Posted on 06/26/2013 at 11:54 AM by Mary Zambreno
UPDATED ON JUNE 26, 2013: In a landmark decision penned by Justice Kennedy, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined (Justices Roberts, Scalia, Thomas, and Alito dissenting), the United States Supreme Court held that the Defense of Marriage Act (DOMA) is unconstitutional as a violation of equal protection pursuant to the Fifth Amendment in the case United States v. Windsor. Edith Windsor and Thea Spyer married in Ontario, Canada in 2007 and then returned to their home state of New York, which recognized their marriage as valid. Spyer died in 2009 and left her entire estate to Windsor, who was then required to pay $363,053 in federal estate taxes because under DOMA, the federal government did not recognize same-sex marriages so she did not qualify for the marital exemption, which excludes from taxation 'any interest in property which passes or has passed from the decedent to his surviving spouse.' Windsor sought a refund of her taxes and was denied by the Internal Revenue Service. While the suit was pending in the lower courts, the Attorney General of the United States notified the Speaker of the House of Representatives that the Department of Justice would no longer defend the constitutionality of DOMA, yet insisted that the Executive Branch would continue to enforce it to allow Congress to participate in the litigation and so that the judicial branch could determine the constitutionality of the claims raised. As the Court stated, 'Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling.' In other words, even though the Executive Branch was no longer defending DOMA in which case there may not be an actual controversy here but a friendly, non-adversary proceeding there still existed the controversy of whether Windsor was entitled to a refund and as such, the Court proceeded to rule on the merits of her claims. The Court also recognized that the Bipartisan Legal Advisory Group (BLAG) presented a 'substantial argument for the constitutionality of DOMA' which 'satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree.' The question of federalism appeared to be at the heart of the Court's opinion in stating that 'it is necessary to discuss the extent of state power and authority over marriage as a matter of history and tradition,' and at the time of the opinion, 12 states including Iowa and the District of Columbia had decided as is their right under federalism principles that same-sex couples have the right to marry. In other words, recognizing civil marriages is central to state domestic relations laws and the federal government historically has deferred to the states with respect to domestic relations. For example, the federal government does not hear divorce and custody cases because those issues are left to the states to determine exclusively. But beyond DOMA's intrusion into state-governed issues, 'DOMA seeks to injure the very class New York seeks to protect. By doing so, it violates basic due process and equal protection principles applicable to the Federal Government,' as the Court stated. The Court noted that an examination of DOMA's history showed that it was not enacted to have only an incidental effect on same-sex marriages but rather, 'it was its essence' and was intended to influence the states' decisions on how to shape its own marriage laws. The Court also examined the wide-reaching effect of DOMA on precluding same-sex couples from benefits such as certain health care and social security survivor benefits and federal financial aid. In his dissenting opinion, Chief Justice Roberts noted that a federalism argument could be made on behalf of DOMA, as well, in that the statute still permits each state to adopt or define its own definition of marriage. Justice Scalia, in his opinion, determined that there was no justiciable controversy and thus, the Supreme Court did not have jurisdiction to hear the argument. As Scalia wrote, 'What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.' In discussing the merits of the case, Justice Scalia also noted that simply because a law can be characterized as 'mean-spirited' does not also mean that the law is invalid or has a justifiable rationale. By way of example, Justice Scalia suggested that one benefit of DOMA would be to cure any choice-of-law issues as it relates to whose state law controls when a same-sex couple marries in a state that recognizes same-sex marriages and then moves to a state that does not recognize same-sex marriage and that couple wishes to file joint tax returns. Justice Alito's dissent focused on whether the Court had standing in a different sense that is, that 'any change on a question so fundamental should be made by the people through their elected officials' and courts should not step in to assign definitions of marriage to the people through jurisprudence.
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- Mary Zambreno
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