DOMA (Defense of Marriage Act)
United States v. Windsor
Edith Schlain Windsor is challenging a section of federal law, the Defense of Marriage Act (DOMA), that defines marriage as between a woman and a man. The law denies federal benefits to same-sex couples who are legally married in their states. Unlike the Prop 8 case, the DOMA challenge does not address whether there is a fundamental right under the Constitution to same-sex marriage.
Windsor is an 83-year-old woman from New York who married Thea Clara Spyer in 2007 after some 40 years together as a couple. When Spyer died in 2009, Windsor was denied -- under DOMA -- an exemption on federal estate taxes that she had paid on her spouse's estate.
In February 2011, the Obama administration announced that while it would continue to enforce DOMA, it would no longer defend the law. House Republicans stepped in to defend the law through the Bipartisan Legal Advisory Group (BLAG). Paul D. Clement, is the lead lawyer for BLAG.
Before the Justices can reach the merits of the case they will have to address two threshold issues. The first is whether the Court even has the jurisdiction to hear the case given that the U.S. government agrees with Windsor that DOMA is unconstitutional. The second question involves whether BLAG has the standing to defend the law. If the Court decides it does not have the power to decide the case, Windsor wins her refund, but at least for now, DOMA would remain on the books in other jurisdictions.
DOMA was passed in 1996 with wide majorities in both the House and the Senate. But since then, public opinion on gay marriage has changed radically. Today, the latest polls find that a majority of Americans support gay marriage.
Arguments in support of DOMA: Clement says that Congress was acting rationally when it passed DOMA and sought uniformity throughout the states. Similar to the arguments of supporters of Prop 8, Clement argues that in passing DOMA, Congress had a good reason to support traditional marriage. He targets the "tendency" of opposite-sex couples to produce "unintended and unplanned offspring."
"Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society," Clement says.
In his briefs, Clement points out that the federal government is not invalidating any state same-sex marriage laws, but instead is ensuring that federal benefits are distributed uniformly throughout the states.
He also urges the court to allow democracy to play out. The "correct answer," he tells the Court, is to leave an issue as "divisive and fast-moving" as same-sex marriage to the democratic process.
"In that process," Clement writes, "there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus."
U.S. government's arguments against DOMA: The U.S. government argues that DOMA violates the equal protection clause of the Constitution.
"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," writes Solicitor General Donald B. Verrilli.
Verrilli argues that laws that discriminate on the basis of sexual orientation warrant heightened scrutiny from the courts. He points out such scrutiny is necessary because gays and lesbians have faced a "significant history of discrimination in this country," and that they have suffered from limited political power as evidenced by the fact that states have passed initiatives banning same-sex marriage.
Lawyers for Windsor arguments against DOMA: Windsor rejects Clement's position that DOMA is necessary to promote responsible procreation, writing in court briefs: "It is irrational, fantastical thinking to believe that the federal government's decision to treat married gay couples as unmarried under federal law will encourage straight couples to marry before having children."
Some Possible outcomes:
At oral arguments, key swing vote Justice Anthony Kennedy seemed skeptical of the constitutionality of the law. But instead of pressing equal protection concerns, he focused on federalism and states' right issues.
If the court finds that the law is unconstitutional, then same-sex couples who are legally married in their state, would be able to get federal benefits currently available to opposite sex couples.
If the court upholds the law, then the current status quo remains.
If the court rules that it has no jurisdiction to hear the case, and thus is powerless to decide the issue, then Edith Windsor will get her tax refund of $363,000. But at least for now, DOMA will remain on the books in other jurisdictions.