Defense of Marriage Act (DOMA)

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U.S. DEFENSE OF MARRIAGE ACT

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doma, repeal

United States v. Windsor

On November 9, 2010, the American Civil Liberties Union and the law firm Paul, Weiss, Rifkind, Wharton & Garrison filed United States v. Windsor in New York on behalf of a surviving same-sex spouse whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried. New York is part of the Second Circuit, where no precedent exists for the standard of review to be followed in sexual-orientation discrimination cases.

New York Attorney General Eric Schneiderman filed a brief supporting Windsor’s claim on July 26, 2011.

On June 6, 2012, Judge Barbara Jones ruled that based on rational basis review, Section 3 of DOMA is unconstitutional and ordered the requested tax refund be paid to Windsor. The plaintiff commented, “It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers.” Windsor’s attorneys filed a petition of certiorari with the Supreme Court on July 16, 2012 asking for the case to be considered without waiting for the Second Circuit’s review. On October 18, 2012 the Second Circuit Court of Appeals upheld the lower court’s ruling that Section 3 of DOMA is unconstitutional. According to an ACLU press release, this ruling was “the first federal appeals court decision to decide that government discrimination against gay people gets a more exacting level of judicial review” In an opinion authored by Chief Judge Dennis Jacobs, the Second Circuit Court of Appeals stated:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition, but law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples.

On December 7, 2012, the Supreme Court agreed to hear the case. Oral arguments were heard on March 27, 2013. In a 5–4 decision on June 26, 2013, the Court ruled Section 3 of DOMA to be unconstitutional, declaring it “a deprivation of the liberty of the person protected by the Fifth Amendment.”

On July 18, 2013, the Bipartisan Legal Advisory Group (BLAG), which had mounted a defense of Section 3 when the administration declined to, acknowledged that in Windsor “[t]he Supreme Court recently resolved the issue of DOMA Section 3′s constitutionality” and said “it no longer will defend that statute.

On July 8, 2010U.S. District Court, District of Massachusetts Judge Joseph Tauro, who appointed to the federal bench in 1972, ruled this afternoon in Gill v. Office of Personnel Management that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. A companion decision in Massachusetts v. U.S. Dep’t of Health and Human Services also was issued, with Tauro finding that DOMA also violates the Tenth Amendment and the Spending Clause of the Constitution.

In Judge Tauro’s decision in the Massachusetts case, he found that — in addition to equal protection principles — DOMA violated the Tenth Amendment and the Spending Clause of the U.S. Constitution. In part, he writes:

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth  Amendment.

In fact, Tauro’s parting words in Gill, set up just how difficult he believes that an appeal should be:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

As to why the Fifth Amendment is implicated, it is how the Equal Protection Clause of the Fourteenth Amendment is applied to the federal government. Sometimes referred to as “reverse incorporation,” it is the opposite of incorporation — or application — of the Bill of Rights to the states through the Fourteenth Amendment. Incorporation was the reason why the U.S. Supreme Court found the Fourteenth Amendment to require that the Second Amendment be applied to the states in last week’s decision regarding Chicago’s gun law.

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Congress, Repeal DOMA Now (Rainbow Design) graphicToday, Feb 22, 2012,  the U.S. District Court for the Northern District of California issued its order finding that Section 3 of the Defense of Marriage Act — the federal definition of marriage — is unconstitutional in Golinski v. Office of Personnel Management, Karen Golinski’s challenge to the denial of her request for equal health insurance benefits for her wife.

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies — as urged by the DOJ — and noting that it might not even pass rational basis — the lowest — legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

Later, he wrote:

The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

Finally:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

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US Court of AppealsMay 31, 2012, Section 3 of the Defense of Marriage Act — the federal definition of “marriage” and “spouse” — is unconstitutional, a federal appeals court in Boston ruled.

Writing that “Supreme Court review of DOMA is highly likely,” the appeals court has stayed, or put on hold, the implementation of its decision pending any appeal.today. The decision by a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit in Gill v. Office of Personnel Management and Massachusetts v. United States, is the first instance of a federal appellate court striking down any portion of the 1996 law.

Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: “[M]any Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

On June 6, 2012, echoing several other recent court opinions, U.S. District Court Judge Barbara Jones today ruled that the Defense of Marriage Act’s federal definition of marriage is unconstitutional insofar as it forced Edie Windsor to pay estate taxes after the death of her wife, Thea Spyer, that would not have been owed had she been married to a man.

The ruling in Windsor’s case, which was filed in the Southern District of New York, comes less than a week after a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously found DOMA unconstitutional under a type of rational basis analysis, affirming a decision earlier reached on more expansive reasoning by U.S. District Court Judge Joseph Tauro.

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