United States v. Windsor. In 1996, Congress passed the Defense of Marriage Act (or otherwise known as DOMA) in response
to a movement going on at the time to legalize same-sex marriage.
DOMA said that if a same-sex couple got married in one state, another state wouldn’t need
to recognize it. DOMA also defined marriage for purposes of federal law as a “union
between one man and one woman.”
In 2007, two New York women, Edith Windsor and Thea Spyer, decided to go to Ontario,
Canada, and get married. They returned to New York, and New York recognized their marriage
as legal. In 2009, Spyer died and left everything to Windsor.
Windsor tried to claim the estate tax exemption granted to surviving spouses under federal
law, but she was denied because of the language in DOMA defining marriage as between a man
and a woman.
Windsor sued in federal court and argued that the provision in DOMA excluding same-sex couples
from the definition of marriage violated the Fifth Amendment. During the litigation, the
Obama administration decided the DOMA provision was unconstitutional and directed the Justice
Department not to defend it in court anymore. However, even so, the President said the Executive
Branch would continue to enforce the law until the courts reached a final decision.
Windsor won in the trial and appellate courts, but the federal government refused to comply
with the judgment. So Windsor didn’t get any refund for all the estate taxes she paid.
The federal government appealed to the U.S. Supreme Court.
On appeal, there were two main issues: the first was whether the Court had jurisdiction
to hear the case and the second was whether the DOMA provision was constitutional.
In a 5-4 split decision, the Court overturns the DOMA provision, holding that the Court
does have jurisdiction and that the exclusion of same-sex couples from the definition of
marriage violates the Due Process Clause of the Fifth Amendment.
Justice Kennedy writes for the majority. On the jurisdiction issue, Kennedy says
jurisdiction under Article III requires the plaintiff to have standing. He says that Windsor
has a redressable injury that gives her standing, because she was forced to pay an unconstitutional
tax. Next, Kennedy writes that even though Windsor and the government both want the DOMA
provision overturned, there is still a controversy because the government continued enforcing
the law and didn’t give Windsor a refund. That means Article III’s case-or-controversy
requirement is satisfied, and the Court can hear the case.
On the constitutional question, Justice Kennedy says that, included in the liberty interest
granted by the Due Process Clause of the Fifth Amendment, there is a right of equal
protection. Kennedy points out that the legislative history of DOMA proves that Congress only
enacted the provision to degrade same-sex couples and take away the rights that states
had given to them. In Kennedy’s view, DOMA’s definition of marriage relegates same-sex
marriages to second-class, denying them equal protection and due process, and harming the
children of those marriages. Without actually saying what level of scrutiny applies, Kennedy
says the government doesn’t have a legitimate interest that justifies the discrimination
and declares the provision unconstitutional.
The ruling is highly controversial, and three justices write dissents.
Chief Justice Roberts writes to point out that the majority’s ruling has no impact
on states’ ability to define marriage.
Justice Scalia writes a blistering dissent. He says that the Court doesn’t have jurisdiction,
because Windsor and the government want the same thing and aren’t really adverse. Even
if the Court did have jurisdiction, Scalia says DOMA is constitutional. In his view,
Congress had valid reasons to pass DOMA, like keeping marriage benefits the same as when
they were enacted.
Finally, Justice Alito says the government wasn’t the right party to bring the case.
However, Alito says that when the president decides not to enforce a law, Congress has
standing to defend it. Alito goes on to say that same-sex marriage is a brand-new right,
and Alito thinks the people, not the Court, should decide whether to recognize it.
This case was a landmark ruling, because it means that all of the benefits available to
married couples under federal law, all the way from tax breaks to social security benefits,
are extended to same-sex couples. The decision left open the question of what level of scrutiny
applies when the government makes classifications based on sexual orientation, but the ruling
suggests that it’s something more than rational basis review.
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