Defense of Marriage Act

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • April 17, 2013
    Guest Post

    by Mary Bonauto and Paul Smith. Ms. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston. She was lead counsel in the Goodridge Massachusetts marriage case in 2003. Mr. Smith practices law in Washington, D.C. and argued the landmark Lawrence v. Texas gay rights case in the Supreme Court in 2003.


    We are co-counsel in two of the lawsuits challenging the Defense of Marriage Act that are now awaiting the Supreme Court’s ruling in United States v. Windsor. We principally chose “DOMA” as a litigation target because it so clearly denies gay and lesbian married couples the equal protection of the law guaranteed by the Constitution -- treating those married couples, and only those couples,  as though they are single for purposes of all 1,100-plus federal laws that take marital status into account. Significantly though, DOMA also involves a decision by Congress to second-guess the choices made by individual states that have married same-sex couples. By defining “marriage,” for all federal purposes, as limited to heterosexual unions, the law vitiates the States’ determination that married same-sex couples are married for federal purposes. The ability to say who is married has been the virtually exclusive domain of the states -- not Congress -- and is bounded only by other constitutional guarantees of due process and equal protection.

    We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge. In our briefs (as in Edie Windsor’s in the Supreme Court), the fact that states control marriage policy in this country is used to undercut the claimed justifications for discriminating based on sexual orientation that have been offered up by the law’s defenders.  Although neither we nor Windsor raised these claims, one state, the Commonwealth of Massachusetts, has its own pending case in which it argues that DOMA undermines state prerogatives to license marriages for same-sex couples as it does for others. A prominent amicus brief by conservative legal scholars filed in the Windsor case also sounded concerns that DOMA goes beyond defining marriage for federal purposes and interferes with state law. And at the Supreme Court arguments on March 27, Justice Kennedy and others asked questions suggesting they might agree that DOMA violates principles of federalism.

    But the prospect that the Court might give considerable weight to federalism in a decision invalidating DOMA has caused grave concerns among some progressive observers – most notably Linda Greenhouse in her recent column ominously named “Trojan Horse.” The primary concern she expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

  • March 29, 2013

    by Caroline Fredrickson, ACS President. This piece is cross-posted on The Huffington Post.

    It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.

    The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.

    In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?

    Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.

  • March 29, 2013
    Guest Post

    by Erin Ryan, Associate Professor of Law, Northwestern School of Law, Lewis & Clark College. Professor Ryan is the author of Federalism and the Tug of War Within. For more on the cases raising marriage equality concerns see the ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    A federalism scholar explains why federalism isn't the issue in Hollingsworth and Windsor.

    Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued this week. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether they should just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter at hand is an individual right.

    While both cases raise curious issues of standing, the substantive issue at the heart of each case is whether same-sex couples should be able to marry. Hollingsworth v. Perry asks the Court to review the constitutionality of a California’s “Prop 8,” a ballot initiative banning same-sex marriages within the state. United States v. Windsor tests the constitutionality of the Defense of Marriage Act (DOMA), a federal law that prevents the U.S. government from recognizing same-sex marriages performed in states that allow it (and affecting the administration of some 1,100 federal benefits connected with marriage). 

    Yet the looming question for the Supreme Court is not just whether gays and lesbians have the right to marry -- the justices must also confront the question of who should decide whether same-sex couples can marry. Is this something that states should be able to decide for themselves, by making and interpreting state law? (After all, matters of family law have traditionally been left to state regulation.) Or, is the decision to marry so fundamentally important that it triggers the federal Constitution’s promise that all citizens will be treated equally under the law? (After all, even though family law is traditionally left to the states, the Constitution won’t allow them to deny interracial marriages.)

  • March 27, 2013

    by Jeremy Leaming

    As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

    But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

    ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

    Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

    After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”