DOMA

  • 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.

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.  

  • 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.)