Defense of Marriage Act (DOMA)

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

  • June 26, 2013
    Guest Post

    by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.

    The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

    Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

    Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

    Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

    Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.

  • June 26, 2013

    by Jeremy Leaming

    A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people. 

    In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

    In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

    But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

    In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”  In this instance DOMA did not survive that type of scrutiny.

    In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

    “DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

  • June 19, 2013

    by Jeremy Leaming

    In a final discussion about marriage equality at the 2013 ACS National Convention, Paul M. Smith, a longtime Supreme Court litigant, discussed why he thinks in the long run marriage equality will win the day across the country.

    Smith (pictured) successfully argued before the Supreme Court against a Texas sodomy law resulting in the landmark Lawrence v. Texas opinion. That opinion, among at least one other high court opinion, has helped advance equality for the LGBT community. The two cases before the Supreme Court – Hollingsworth v. Perry and U.S. v. Windsor center squarely on the constitutionality of same-sex marriage. But in both cases the high court has ways to avoid going too far. In Perry, the case raising constitutional challenges to California’s Proposition 8 could be dismissed on standing grounds or it could be narrowly tailored to only affect that state. In Windsor, the justices could invalidate the so-called Defense of Marriage Act (DOMA) on federalism grounds and not address whether laws targeting LGBT persons for discriminatory treatment subvert the Constitution’s equal protection clause.

    Smith, a longtime proponent of equality, talked with me about why he thinks it may be appropriate for the high court to avoid a finding that would require all states to recognize same-sex marriages.

    Regarding Windsor, the case involving DOMA, Smith said his “expectation is that the Court will probably reach the merits in the DOMA case and hold it unconstitutional. It’s possible though that they there may not be five votes to hold it unconstitutional under the equal protection clause. Instead Justice Kennedy seemed to be interested more in federalism arguments. My own view about that is -- that would be fine. If the law goes away, the law goes away and a whole lot of happy couples will be able to be treated as fully married by their own federal government. And that would be huge progress.”

    He continued, “In terms of Perry, if I were a justice I would probably not decide all 50 states have to marry same-sex couples this year. The change that is happening in public opinion is so dramatic, the political changes that are sweeping the country are so dramatic that I think the Court is a part of that process; it played a great role in getting it started with the Lawrence decision and others. But they have ways of being a part of it without taking it all the way to the finish line. And I think they would prefer to do it that way, and I don’t tend to disagree with them. I know that many younger people who would think that is crazy; that there is no reason why the Court shouldn’t do what’s right, right now. And I certainly think that the right answer in the long run will be that there should be marriage equality mandated by the federal Constitution.”

    Smith and Mary Bonauto, of the Gay & Lesbian Advocates & Defenders (GLAD), provide more detail on federalism and marriage equality in this guest post. Watch the brief interview with Smith below or visit here.

  • March 19, 2013
    Guest Post

    by Nicole G. Berner, Associate General Counsel of the Service Employees International Union (SEIU) and Counsel of Record in Labor Movement Briefs filed in Hollingsworth v. Perry and United States v. Windsor & Elena Medina, SEIU Law Fellow. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.


    A broad coalition of labor unions, representing more than 20 million American workers, and the interests of working people more broadly, filed amicus curiae briefs in support of the respondents in the Supreme Court challenges to the Defense of Marriage Act (DOMA) and California’s Proposition 8. Both cases will come before the Court for oral argument next week. The briefs, the only to outline specifically the economic damages of these laws, advocate for the right of all working people to fair and equal treatment in the workplace, and for the right of lesbian, gay, bisexual and transgender workers to receive the same employment benefits and protections as their heterosexual co-workers.

    Marital status plays a key role in determining eligibility for-- and taxation of -- a myriad of workplace benefits and protections. These benefits, together with state and federal programs for working people and their families, form the safety net upon which most Americans rely for retirement and financial assistance in the event of illness, injury, disability or death. They are particularly crucial for families in which only one adult works outside of the home or is eligible for employer-provided benefits. Laws codifying marriage discrimination, such as DOMA and Proposition 8, largely deprive LGBT workers of access to these benefits and protections and thereby perpetuate a two-tiered workforce in which LGBT workers are treated inferior to their heterosexual counterparts and unfairly relegated to a lower stratum of economic security.

    Health Care Benefits. Employer-provided health care provides the most common source of medical coverage for working Americans and their families. But for same-sex couples, DOMA and Proposition 8 create a litany of impediments that complicate, penalize or flatly prohibit full family coverage. Without equal access to employer-provided spousal health care benefits, some non-covered same-sex partners are forced to rely on coverage available through public assistance or to go without health insurance entirely. Even for workers whose employers extend coverage to gay and lesbian spouses or who can afford to purchase private insurance for the non-covered spouse, DOMA and Proposition 8 deny access to tax benefits and raise health care costs for same-sex couples significantly, forcing such couples to pay thousands of dollars more on healthcare each year.