Defense of Marriage Act

  • July 2, 2015

    by Caroline Cox

    At The Boston Globe, Kent Greenfield, faculty advisor for the ACS Boston College Law School Chapter, argues that the same-sex marriage ruling was as much an emotional exercise as an intellectual one.

    Eric Segall discusses at Dorf on Law how Justice Antonin Scalia has become “a caricature of the bitter old man despondent about the ‘good old days.’”

    The Editorial Board of The New York Times argues that it is time for the Supreme Court to allow television cameras in the courtroom.

    Brianne Gorod explains at Slate how President Obama’s choice not to defend the federal Defense of Marriage Act influenced the Obergefell ruling.

    At the blog for the Brennan Center for Justice, Ciara Torres-Spelliscy calls the ruling in the Arizona redistricting case “a win for democracy.”

  • October 17, 2014
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

    Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

    Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

  • 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.