Justices weigh striking down Defense of Marriage Act

Lisa Neff, Staff writer

U.S. v. Edith Windsor, the case heard mid-morning March 27 by the U.S. Supreme Court, is about a widow’s fight against a federal government that refuses to recognize her marriage to her partner of 44 years.

U.S. v. Windsor is about discrimination against 112,700 other legally married same-sex couples wanting the federal government to recognize their relationships and access to more than 1,100 federal marriage benefits.

U.S. v. Windsor is about the estimated 10,000 military servicemembers whose families are denied equal benefits and protections under the Defense of Marriage Act.

U.S. v. Windsor is about the estimated 36,000 binational same-sex couples whose families face bearing broken up because of DOMA.

And U.S. v. Windsor is about countless other same-sex couples wanting but waiting to marry in the District of Columbia and nine other states – and perhaps as many as four others by the end of the year.

The court likely will issue an opinion in the Windsor case in late June, when it also rules on a case challenging California’s Proposition 8, the voter-approved constitutional amendment defining marriage as the union of a man and a woman.

In Windsor, the nine justices will be deciding whether the U.S. government’s refusal to recognize legal marriages violates the Fifth Amendment’s guarantee of equal protection. 

Before answering that question, the justices will consider a question of whether House Republicans, who are defending DOMA, have jurisdiction and standing. The House leadership hired a legal defense team to intervene after the U.S. Justice Department declined to defend DOMA, arguing that the law signed by Bill Clinton in September 1996 is unconstitutional. The justices spent a lot of time on the question of standing, and raised concerns for the Obama administration’s enforcement of a law it finds unconstitutional.

DOMA contains two basic provisions – one allows states to refuse to recognize same-sex marriages from other states and the other requires the federal government to refuse recognition of legal same-sex marriages.

At the time the law was passed, there were no legal same-sex marriages in the nation.

DOMA’s federal prohibition results in the government denying gay and lesbian couples more than 1,100 benefits associated with marriage, including benefits related to taxes, immigration and Social Security.

DOMA has been ruled unconstitutional 10 times in seven cases, including Windsor, which was filed by the American Civil Liberties Union in November 2010 in the U.S. District Court for the Southern District of New York.

Windsor and Thea Spyer, after four decades of being together, had married in Canada in 2007. Two years later, Spyer died of complications from multiple sclerosis and left her estate to her wife.

Because of DOMA, the U.S. government refused to recognize the marriage and Windsor was required to pay $363,000 in federal estate taxes. Had Spyer been a man, the tax would have been zero.

The ACLU argues that DOMA violates the equal protection guarantee of the U.S. Constitution by recognizing and honoring marriages of different-sex couples but not honoring the legal marriages of same-sex couples.

Windsor won at the U.S. District Court level last June, when Judge Barbara Jones ruled that Section 3 is unconstitutional. She wrote, “DOMA operates to reexamine the states’ decisions concerning same-sex marriage. It sanctions some of those decisions and rejects others. But such a sweeping federal review in this arena does not square with our federalist system of government, which places matters at the ‘core’ of the domestic relations law exclusively within the province of the states.”

An appeals court upheld Jones’ decision last October, prompting a last appeal to the U.S. Supreme Court, which agreed in December to take the Windsor case, setting oral arguments for March 27, followed by a decision in late June.

The arguments began at about 10:10 a.m., with the first discussion focused on jurisdiction and standing.

Chief Justice John Roberts told the U.S. deputy solicitor general that the administration’s decision not to defend DOMA but to ask the Supreme Court to rule on the law was unprecedented. 

Justice Anthony Kennedy said if the president believed DOMA was unconstitutional, perhaps he shouldn’t enforce it.

Justice Antonin Scalia refered to the Obama administration as the “new regime” and called it a “new world” when the attorney general enforces a law but decides it is unconstitutional.

Deep into the hearing, the justices turned their focus to the arguments for and against DOMA. The earliest reports from the courtroom were that there was a majority opposed to Section 3 of DOMA. ScotusBlog reported that Kennedy, considered the swing vote on both marraige cases, suggested that the federal rejection of same-sex marriages violates state rights.

Kennedy also wondered whether the federal government had the “authority to regulate marriage.”

ACLU attorney James Esseks, representing Windsor, agreed that marriage is not a traditional issue for the federal government. “It’s the states that marry people. The federal government doesn’t do that,” he said.

Justice Ruth Bader Ginsburg indicated what she thought of DOMA when she said the federal provision created a two-tiered system – “full marriage and the skim-milk marriage.” She also observed that marriage impacts “every aspect of life.”

Justice Elena Kagan, during the arguments, read from a congressional report that accompanied DOMA in 1996 and said that lawmakers’ intent was to show moral disapproval of homosexuality.

Kagan said that the court tends to treat federal laws as suspect when they are passed by a Congress that “targets a group that isn’t everyone’s favorite group in the world.”

After the hearing, Windsor attorney Roberta Kaplan of Paul, Weiss, Rifkind, Wharton and Garrison, said, “Two lower courts have concluded that it was unconstitutional for Edie to have to pay a $363,000 estate tax bill simply because, as a lesbian, she was married to a woman, instead of a man. We very much hope that the Supreme Court will do the same.”

Windsor said, “Thea and I were legally married. We loved and cared for each other for over 40 years. We deserve to be treated equally by our country, and not like second-class citizens. While Thea obviously can’t be here today, I know how proud she would be to see how far we have come for us to be standing on the steps of the Supreme Court asking for fair treatment of our marriage.”

DOMA continues to face other legal challenges and also is the focus of a repeal campaign in Congress. However, the legislative effort is not expected to advance in the Republican-controlled House.

Editor’s note: To be updated.