The Defense of Marriage Act
In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.
But it didn’t, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.
The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.
1. DOMA Is Unconstitutional
Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMA unconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.
If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.
If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law — state or federal — that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn’t mean hope is lost. The Court doesn’t have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it’s DOMA.
There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a “states’ rights” or federalism argument. During oral arguments Justice Anthony Kennedy seemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.
The states’ rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.
2. DOMA Is Constitutional
As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.
3. SCOTUS Punts on the Merits of the Case Read the rest of this entry →