United States v. Windsor

Paul, Weiss, Rifkind, Wharton & Garrison, in conjunction with the American Civil Liberties Union (ACLU), filed the case in the U.S. District Court for the Southern District of New York on behalf of Windsor as executor of Spyer's estate on November 9, 2010.[20][21]

On February 23, 2011, Attorney General Eric Holder released a statement regarding two lawsuits challenging DOMA Section 3, Windsor and Pedersen v. Office of Personnel Management. He explained that the Department of Justice (DOJ) had previously defended Section 3 of DOMA in several other lawsuits in jurisdictions where precedents required the court to use the rational basis standard for reviewing laws concerning sexual orientation. Since Windsor was filed in the jurisdiction of the Second Circuit Court of Appeals, which had no such precedent, the DOJ had identified the proper standard of review in such cases as the more demanding "heightened scrutiny". Under that standard, it could no longer defend the constitutionality of DOMA Section 3.[22][23][n 4]

On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA. The Department of Justice did not oppose the motion.[24]

Windsor filed a motion for summary judgment on June 24.[25] New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011, arguing that DOMA Section 3 could not survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage".[26] On August 1, 2011, BLAG filed a brief opposing Windsor's motion for summary judgment on the grounds that sexual orientation is not subject to heightened scrutiny.[27]

On June 6, 2012, Judge Barbara S. Jones ruled that a rational basis review of Section 3 of DOMA showed it to be unconstitutional, as it violated plaintiff's rights under the equal protection guarantees of the Fifth Amendment, and ordered that Windsor receive the tax refund due to her.[28][29] Where BLAG had argued that the Spyer-Windsor marriage was not recognized by New York law at the time of Spyer's death – a prerequisite for Windsor's claim against the IRS – Jones cited the "informal opinion letters" of the state's governor, attorney general, and comptroller to the contrary along with several opinions in New York appellate courts.[28] The plaintiff said afterward: "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."[30][31]

Despite its approval of the ruling, the Justice Department filed a notice of appeal on June 14, 2012, to facilitate BLAG's defense of the statute.[32] BLAG filed a motion to dismiss the DOJ's Second Circuit appeal on July 19, claiming the DOJ lacks standing because it prevailed in the District Court.[33] Meanwhile, Windsor's legal counsel filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit's review, citing the plaintiff's age and health.[34]

The DOJ replied to BLAG's motion to dismiss, asserting: (1) its standing as an "aggrieved party", because the District Court's stay prevents the DOJ from taking steps to cease enforcement of Section 3 of DOMA; and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.[35]

On September 27, Chief Judge Dennis Jacobs and Judges Chester J. Straub and Christopher F. Droney heard arguments in the case.[36] On October 18, the Second Circuit Court of Appeals upheld the lower court's ruling that Section 3 of DOMA is unconstitutional.[37][38] The majority opinion stated, "It is easy to conclude that homosexuals have suffered a history of discrimination." Thus they were part of a quasi-suspect class that deserves any law restricting its rights to be subjected to intermediate scrutiny. Because DOMA could not pass that test, Judge Jacobs wrote, it is unconstitutional under the equal protection guarantees of the Fifth Amendment.[37][39]

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. [40]

It was the first federal court of appeals decision to hold that laws that classify people based on sexual orientation should be subject to heightened scrutiny.[40][41] Like the lower court, the Second Circuit held that the Spyer-Windsor marriage was valid under New York law, citing precedents on that question from several state appellate court decisions, two of which preceded Spyer's death.[38] Where New York law is unclear, the Second Circuit must adopt a predictive approach, as it did in this case.[42]

Photo of the steps of the United States Supreme Court building on the morning of June 26, 2013, hours before the court overturned the Defense of Marriage Act.

On September 11, 2012, following Windsor's petition for certiorari before judgment and before the Second Circuit's ruling, the Department of Justice filed its own petition for certiorari before judgment with the Supreme Court.[43] After the appellate ruling on October 18, the parties filed supplemental briefs.[44] On December 7, the Supreme Court granted certiorari in the case, now United States v. Windsor, accepting the DOJ's petition.

In addition to the question presented by the DOJ – "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection" for same sex partners – the court also asked the parties to brief and argue two other questions: whether the government's agreement with the Second Circuit's decision deprived the court of a "real dispute" and therefore of jurisdiction to hear the case, and whether BLAG had standing in its own right, i.e., the legal right to independently ask for the appeal to be heard in the event that the government was not a valid petitioner. Article III of the Constitution (the "Case or Controversy clause") forbids parties that do not themselves have a real and personal ("particularized") complaint from filing a case or appeal in a federal court.[45]

Windsor noted in a statement that when she and her partner met nearly 50 years earlier that they never dreamed their marriage would land before the Supreme Court "as an example of why gay married couples should be treated equally, and not like second-class citizens". Noting that her deceased wife would be proud, Windsor added, "The truth is, I never expected any less from my country."[46]

On December 11, the Supreme Court appointed Vicki C. Jackson, a professor of constitutional law at Harvard Law School, as an amicus curiae to argue the two additional questions it posed.[47] BLAG filed its own petition for certiorari,[n 5] in order to enable the court to rule on the constitutionality of DOMA, even if it were to decide that it lacked jurisdiction to hear the DOJ's petition.[48] The Supreme Court heard oral arguments on March 27, 2013.[49]

In a 5–4 decision issued on June 26, 2013, the Supreme Court found Section 3 of DOMA (codified at 1 U.S.C. § 7) to be unconstitutional,[1][2][3][50] "as a deprivation of the liberty of the person protected by the Fifth Amendment".[51]^:25[52] The Court held that the Constitution prevented the federal government from treating state-sanctioned heterosexual marriages differently from state-sanctioned same-sex marriages, and that such differentiation "demean[ed] the couple, whose moral and sexual choices the Constitution protects".[53] Justice Anthony Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.[54] Kennedy's decision to strike down a central part of DOMA cited the principles of state autonomy, equal protection and liberty,[54] but the constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process.[2] The answer may be found in Windsor's brief, in which she argues that DOMA operates to say "that married gay couples aren't genuinely married at all but are instead 'similarly situated' to unmarried people".[55]

The Court wrote:[56]

Justice Kennedy, the author of the Court's opinion.

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S. 497 (1954).[57]

When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits.[58]

DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,[59] ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.[60]

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.[61] ... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations.[62] ... It forces them to follow a complicated procedure to file their state and federal taxes jointly.[63] ... It prohibits them from being buried together in veterans' cemeteries.[64][65]

For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer",[66] ... with the intent to influence or retaliate against that official.[67] ... Although a "spouse" qualifies as a member of the officer's "immediate family",[68] ... DOMA makes this protection inapplicable to same-sex spouses.[69]

The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.[70]

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito authored dissenting opinions, which Justice Clarence Thomas joined.[71]

Justice Scalia's dissent, which was joined in full by Justice Thomas and in part by Chief Justice Roberts,[72] opened:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

Justice Scalia, the author of one of the three dissenting opinions.

He continued:

Windsor's injury was cured by the judgment in her favor. ... What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.

Scalia argued that the judgment effectively characterized opponents of same-sex marriage as "enemies of the human race":[73]

It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

He argued that the Court's ruling would affect state bans on same-sex marriage as well:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.[74]

Scalia concluded by saying that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat".[51]

The opinions of Roberts and Scalia offered different interpretations of the majority ruling. Roberts said the majority opinion was based on federalism, finding DOMA unconstitutional because the federal government was interfering with state control of marriage. He wrote: "The dominant theme of the majority opinion is that the Federal Government's intrusion into an area 'central to state domestic relations law applicable to its residents and citizens' is sufficiently 'unusual' to set off alarm bells. ... [I]ts judgment is based on federalism."[51] Scalia was uncertain whether the majority relied upon that federalism argument or based its decision on Equal Protection grounds, writing, "if this is meant to be an equal-protection opinion, it is a confusing one".[51]

New Jersey Supreme Court previously ruled in Lewis v. Harris that the denial of marriage benefits violate same-sex couples equal protection under the New Jersey state constitution. But following Windsor a New Jersey state judge ruled that the extension of federal benefits to married same-sex couples made New Jersey's civil unions to be lacking the equal protection.[102]

In several other cases, the ambiguity in the majority decision in Windsor has produced varying interpretations in later legal decisions that address state regulation of marriage and the denial of marriage rights to same-sex couples. Courts have disputed whether Windsor relied upon federalism or equal protection and what standard of review the Supreme Court applied. Others have used it to dismiss the precedential importance of Baker v. Nelson. Within 2 years of the Windsor decision 28 district courts and 4 appeals court ruled that state level same-sex marriage bans are unconstitutional, while only two district courts and one appeals court ruled they did not violate the constitution.

In December 2013, a U.S. District Court judge ruling in Kitchen v. Herbert found that Baker no longer controlled his decision, because the rule is that "doctrinal developments" can obviate the importance of a dismissal like Baker and given the issues before the court Windsor was "highly relevant and is therefore a significant doctrinal development". It also read Windsor as an equal protection case, writing: "The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."[103][104][105]

District Court Judge Arenda L. Wright Allen ruling in Bostic v. Rainey on February 13, 2014, noted that Windsor discussed the deference due state laws defining marriage only to assert that "due process and equal protection guarantees must trump objections to federal intervention". She cited Justice Scalia's prediction that the reasoning of the majority in Windsor with respect to federal law motivated by a "bare ... desire to harm" would produce the same conclusion with respect to state laws.[106]

In De Leon v. Perry, Orlando Garcia on February 26, 2014, framed the lawsuit in terms of Windsor: "Now, the lower courts must apply the Supreme Court's decision in Windsor and decide whether a state can do what the federal government cannot -– discriminate against same-sex couples." He then made the same point Judge Wright Allen had made, citing Windsor: "While Texas has the 'unquestioned authority' to regulate and define marriage, the State must nevertheless do so in a way that does not infringe on an individual's constitutional rights." (references omitted)[107]

Some courts have agreed with Scalia that the Windsor decision lacked clarity and proceeded to interpret it with little reference to federalism, just as Scalia had predicted.[108] When ruling Oklahoma's ban on same-sex marriage unconstitutional on January 14, 2014, in Bishop v. Oklahoma, U.S. District Judge Terence C. Kern described the decision as the culmination of a process: "There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one".[109] When U.S. District Judge Jone E. Jones ruled on May 20, 2014, that Pennsylvania's same-sex marriage ban was unconstitutional, he read Windsor as an equal protection decision. He cited Justice Scalia's critique of the lack of clarity in the Windsor decision, writing: "As Justice Scalia cogently remarked in his dissent, 'if [Windsor] is meant to be an equal-protection opinion, it is a confusing one. ... Windsor found DOMA unconstitutional because 'no legitimate purpose overcomes the purpose and effect to disparage and to injure.'"[110]

Conversely, U.S. District Judge Martin Feldman, upholding Louisiana's ban on same-sex marriage on September 3, 2014, reviewed the arguments before him and wrote: "Both sides invoke the Supreme Court's decision in United States v. Windsor. ... But Windsor does little more than give both sides in this case something to hope for." In a footnote, he explained his reading of the case:[111]

Windsor, in the context of the issues presented to this Court, is unclear (contrary to the conclusions in many recent federal court decisions). It is by its own terms, limited. Its "opinion and its holding are confined to those lawful marriages". However, Windsor also references an amorphous but alluring "evolving understanding of the meaning of equality". Hence this Court's unease that Windsor merely offer bits and pieces of hope to both sides. (citations omitted)

He quoted Chief Justice Roberts' dissent as a reason not to read Windsor as a guide for deciding the constitutionality of restrictions on same-sex marriage: "The Court does not have before it", wrote Roberts, "and the logic of its opinion does not decide the distinct question whether the States, in the exercise of their 'historic and essential authority to define the marital relation', ... may continue to utilize the traditional definition of marriage". Feldman found nothing in Windsor to require him to use heightened scrutiny, saying that "Windsor starkly avoids mention of heightened scrutiny". He called the argument that Windsor's use of the phrase "careful consideration" meant intermediate or heightened scrutiny amounted to "intellectual anarchy". He criticized several recent federal court decisions for failing to specify the appropriate standard of review they used to evaluate the constitutionality of bans on same-sex marriage. Instead he cited Windsor for its "powerful reminder" that "'The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations'".[111]

A 3-judge panel of the Ninth Circuit Court of Appeals in SmithKline v. Abbott considered what standard of review to apply when determining whether sexual orientation can be used in selecting the members of a jury. It ruled unanimously on January 21, 2014, based on its reading of Windsor, that distinctions based on sexual orientation are subject to a standard of review higher than rational basis review and that "equal protection prohibits peremptory strikes based on sexual orientation".[112] The Ninth Circuit wrote:[113]

Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

A split remains among the second, sixth and ninth circuits of the courts of appeal regarding the level of scrutiny that applies to classifications based on sexual orientation. Although the Supreme Court had the opportunity to address the level of scrutiny in Obergefell v. Hodges, that decision focused on the fundamental right to marry.

Many scholars have theorized that the ruling in Windsor have elevated classifications on the basis of sexual orientation to be considered under a 'rational basis with bite' evaluation; and have found the analysis to be closely synonymous with how classification of religion are reviewed. The Ninth Circuit court also observed that the majority in Windsor shifted the burden from the same-sex couple to the government when it wrote that the government has to "justify disparate treatment of the group".[114]