By Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law; Co-Director, Center for Gender & Sexuality Law; and Director, Sexuality and Gender Law Clinic, Columbia Law School
While marriage equality supporters have been giving thanks for the recent ballot box victories and the Second Circuit’s Windsor v. U.S. decision, the most recent Defense of Marriage strike-down by a federal court in mid-October, the law-focused among us are also looking ahead to the next big question: What will the U.S. Supreme Court do on Nov. 30, when it is scheduled to decide on the marriage-related cert petitions pending before it?
Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons.
Perhaps most importantly, Windsor presents a powerful – and personal – story of DOMA’s discriminatory effects on lesbian and gay married couples. Edie Windsor and Thea Clara Spyer were together for 42 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto, in a relationship so committed and moving that it became the subject of a widely acclaimed documentary, Edie and Thea. Yet because of DOMA, the United States refused to recognize their relationship and, when Thea died, sent Edie a $300,000+ tax bill that would have been $0 had the government acknowledged their marriage.
Although, at the end of the day, the Supreme Court’s constitutional jurisprudence tends not to focus heavily on the parties’ facts (consider Lawrence v. Texas, among many others), DOMA’s injustice here makes for a particularly compelling case.
In addition to its facts, Windsor also adds a new dimension to the DOMA jurisprudential landscape. Among the ten federal court rulings to invalidate DOMA thus far, Windsor is the first where a circuit court applied heightened scrutiny to the statute’s sexual orientation-based classification. In the 2-1 ruling, Chief Judge Dennis Jacobs followed the high court’s traditional analysis, asking whether gay people have suffered a history of discrimination; whether sexual orientation is a distinguishing characteristic; whether sexual orientation relates to an individual’s ability to contribute to society, and whether gay people are relatively politically powerless. All of these inquiries, he found, warrant intermediate scrutiny for classifications that, like DOMA’s, distinguish between gay and non-gay people.
Judge Chester J. Straub’s dissent, by contrast, applied rational basis review and concluded that Congress could legitimately favor different-sex couples for marriage as “the only [relationship] which is inherently capable of producing another generation of humanity.”
Again, the Second Circuit’s move toward heightened scrutiny does not tell us whether the Supreme Court will make a similar move (and the Court’s past reluctance to expand the class of heightened scrutiny categories might suggest not). Still, Windsor breaks important ground by providing circuit court endorsement for yet another path the Court might take to bring DOMA to an end.
Finally, many believe that Justice Elena Kagan is likely to recuse herself if the Court accepts the First Circuit’s Gill case for review because she had some involvement in the case during her Solicitor General service. By all accounts, the full Court, including Justice Kagan, would be available to hear and decide Windsor.
In short, as we close in on the last weeks of 2012, a year marked by an unprecedented momentum in favor of marriage equality by both courts and the general public, the prospect of a cert grant in Windsor offers hope that we will have much to look forward to in the coming year.