Marriage Equality

United States v. Windsor (DOMA)

by Peter Laumann, Alliance for Justice Dorot Fellow

Oral Argument: March 27, 2013

Section 3 of the so-called Defense of Marriage Act (DOMA) denies more than a thousand different different federal rights to legally-married same-sex couples. Those benefits range from Social Security death benefits to the right to take family medical leave. DOMA even can separate spouses of different nationalities.

DOMA also has an impact on estate taxes. DOMA prohibited the federal government from recognizing the marriage of Edith Windsor to her lifelong partner, Dr. Thea Spyer. As a result, Ms. Windsor was hit with a huge bill for inheritance taxes. Ms. Windsor sued, arguing that Section 3 of DOMA violates the Constitution’s guarantee of equal protection. Now age 83, Ms. Windsor has taken the case all the way to the Supreme Court.

The Supreme Court in Windsor has the ability to finally recognize that discrimination against LGBT Americans violates the Constitution. Alternatively, the Court could hold that DOMA violates the power of states to define the rights and benefits of their LGBT citizens.

» Read more about Edith Windsor

» Read more about the marriage equality cases

» We have additional expert analysis on our Justice Watch blog

In this clip and the following clip, Justices Kennedy and Ginsburg press BLAG Attorney Paul Clement on DOMA’s wide-ranging intrusion into the power of states to allow same-sex couples to marry. As Justice Ginsburg observes, DOMA creates two types of marriage that states are allowed to recognize under federal law: “full marriage, and this other skim-milk marriage.” Justice Kennedy, in particular, seems concerned that DOMA intrudes on the state police power to define the scope of marriage, and rather than create national uniformity, disregards the decisions of those states that have authorized same-sex couples to marry. In those states, heterosexual spouses are entitled to benefits under some 1,100 federal laws, while same-sex spouses are excluded.

“Skim milk marriages”


Who you'll hear:

Justice Anthony Kennedy, Paul Clement, representing members of the House of Representatives favoring DOMA, Justice Ruth Bader Ginsburg

1,100 laws



Who you'll hear:

Justice Anthony Kennedy, Paul Clement, representing members of the House of Representatives favoring DOMA

The Court spent the first 40 minutes of oral argument in Windsor addressing whether the justices even have the power under Article III to decide the case. The justices explored the President’s responsibility under the Take Care Clause of the Constitution to enforce the law, and whether the President also has an obligation to either enforce or abandon enforcement of a law that the Administration considers unconstitutional. Windsor presents a very unusual situation in which the government agrees with the legal rationale of the lower court’s ruling against the government, but nevertheless wants the Supreme Court to hear the case and strike down DOMA. The questioning and dialogue in two of these clips goes to the heart of whether the President’s obligation to enforce the law or whether the more than $300,000 in benefits owed to Ms. Windsor according to the lower court ruling is sufficient to allow the Court to consider the case.

Additionally, the Court’s questioning in the third clip reflects the justices’ discomfort with providing standing to House Republicans seeking to compel enforcement of DOMA. The Supreme Court has declined to recognize general public action standing to bring suit in federal courts, and the arguments in Windsor suggest that the justices are not enthusiastic about the possibility of granting standing to members of the House absent specific statutory authorization.

Can the Supreme Court decide this case?

 

 

Who you'll hear:

Vicki Jackson, attorney for court-appointed amicus curiae, Justice Anthony Kennedy, Justice Elena Kagan

The President’s responsibility to enforce the law

 



Who you'll hear:

Justice Antonin Scalia, Sri Srinivasan, Principal Deputy Solicitor General of the United States, Justice Ruth Bader Ginsburg

Do House Republicans have standing?

Who you'll hear:

Justice Stephen Breyer, Paul Clement, representing members of the House of Representatives favoring DOMA, Justice Sonia Sotomayor

In these clips, the Court gets to the two substantive options available to the justices in deciding the constitutionality of DOMA. Chief Justice Roberts and Justice Kennedy press Solicitor General Donald Verrilli on whether DOMA presents a federalism issue. General Verrilli is clear that the United States views DOMA as unconstitutional not because it intrudes on the states’ prerogative, but because discrimination and exclusion of same-sex couples from the institution of marriage is abhorrent and violates the Equal Protection Clause. This is in line with General Verrilli’s argument in Hollingsworth, in which he suggested that in the future, the Court should address whether bans on same-sex marriage violate the Equal Protection Clause beyond the context of Proposition 8. Justice Kennedy – and possibly his colleagues – seems to be at least probing the possibility of striking down DOMA on federalism grounds rather than issuing a ruling rooted in Equal Protection. General Verrilli’s argument is that DOMA has not defined marriage for the states, but constitutes federal discrimination against gays and lesbians in states where same-sex marriage has been enacted.

Justice Kagan also raises the issue of DOMA’s discriminatory motive. In Romer v. Evans, the Supreme Court held that laws targeting a particular group motivated by fear or animus are treated with more scrutiny than the minimal “rational basis” standard and are generally constitutionally illegitimate. Justice Kagan points directly to the language of the House in support of DOMA in 1996, which explains that Congress sought to express “moral disapproval of homosexuality.” Paul Clement concedes that if the Court finds this sufficient to constitute animus, the justices should invalidate DOMA.

The motivation behind DOMA


Who you'll hear:

Justice Elena Kagan, Paul Clement, representing members of the House of Representatives favoring DOMA

Federalism vs. equal protection


Who you'll hear:

Donald Verrilli, Solicitor General, Chief Justice John Roberts, Justice Anthony Kennedy, Justice Elena Kagan, Justice Samuel Alito
Justice Breyer here presents Roberta Kaplan, Edith Windsor’s attorney, an opportunity to directly address her opponents’ arguments in support of the law. In doing so, Ms. Kaplan succinctly details DOMA’s effects on the “fenced-in” couples in states where same-sex marriage has been enacted and Congress’s interference in the decisions of those states to allow marriage equality.

Fencing off

Who you'll hear:

Justice Stephen Breyer, Roberta Kaplan, attorney for Edith Windsor