For the second time in a week, a federal court has declared the core section of the Defense of Marriage Act (DOMA) to be unconstitutional.
Judge Barbara Jones of the U.S. District Court for Southern New York, which includes Manhattan, issued a ruling Wednesday (June 6), saying DOMA violates the constitution’s guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax that heterosexual spouses are exempt from.
On May 31, the First Circuit U.S. Court of Appeals, using a “a closer than usual” rational basis review, also struck down Section 3 of DOMA as a violation of equal protection. That case is now headed for the U.S. Supreme Court.
The June 6 decision came in Windsor v. U.S., a case brought by the ACLU on behalf of Edie Windsor. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples.
The ACLU filed suit, arguing that DOMA violates the equal protection rights of gay people whose spouses die. It asked the court to refund to Windsor federal estate tax she was required to pay following Spyer’s death.
Attorneys for the Bipartisan Legal Advisory Group (BLAG) in the U.S. House urged the court to dismiss the lawsuit. BLAG argued that, at the time of Spyer’s death (in 2009), the state’s highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution “does not compel recognition of marriages between members of the same sex.”
But Jones, a Clinton appointee, rejected that argument, noting that, in 2009, the New York governor, attorney general, and comptroller had each “endorsed the recognition of Windsor’s marriage.” And she noted that, since 2006, state appellate courts had upheld as valid marriage licenses from other jurisdictions, including Canada.
In her decision, Judge Jones noted that Windsor and Spyer had been together for 44 years and had obtained a domestic partnership from New York City and a marriage license from Toronto, Canada. Although New York State did not recognize their marriage at the time of Spyer’s death, in 2009, Spyer left Windsor her entire estate in her will.
“Because of the operation of DOMA,” wrote Jones, “Windso did not qualify for the unlimited marital deduction [available under federal law to heterosexual widows] and was required to pay $363,053 in federal estate tax on Spyer’s estate, which Windsor paid in her capacity as executor of the estate.”
In explaining the U.S. Department of Justice’s position concerning DOMA, Jones misstated that the executive branch decided “not to enforce DOMA.” In fact, the Obama administration said it would continue enforcing DOMA but would not defend it in court as being constitutional.
Jones declined to agree with the ACLU that DOMA should be held to the highest scrutiny of judicial review, noting that 11 courts of appeal have also declined to do so and that the U.S. Supreme Court “conspicuously has not designated homosexuals as a suspect class, even though it has had the opportunity to do so.” When a group of people have been designated a “suspect class,” laws putting them at disadvantage are held to the highest level of judicial scrutiny.
But Jones found that DOMA Section 3, which bars the federal government from recognizing legitimate marriage licenses for same-sex couples seeking federal benefits tied to marriage, “does not pass constitutional muster” even under the simplest level of judicial review —rational basis. She took the reasons offered by BLAG to explain treating same-sex couples differently—reasons offered and dismissed in other federal rulings on DOMA thus far—and agreed they did not justify DOMA. For instance, while Congress may have had a “legitimate” hope to promote traditional marriage, she said, “it is unclear how DOMA advances it.” And while Jones said she “does not disagree that promoting family values and responsible parenting are legitimate governmental goals,” she could not “discern a logical relationship between DOMA and those goals.”
She declared DOMA Section 3 unconstitutional as applied to Windsor and ordered the government to repay Windsor the estate taxes she paid with interest.
Windsor, in a statement released through the ACLU, said, “It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers.”
ACLU attorney James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project, said the decision “adds to what has become an avalanche of decisions that DOMA can’t survive even the lowest level of scrutiny by the courts.”
Human Rights Campaign President Joe Solmonese praised Windsor, the ACLU and their cooperating attorneys at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison for their “incredible efforts on behalf of gay and lesbian couples across the nation.”
“The dominoes continue to fall on DOMA with yet another federal court rightly calling it unconstitutional,” said Solmonese in a statement released by HRC. “All loving and committed married couples should be recognized by the federal government yet we continue to see the terrible pain DOMA inflicts on real families. The real question is when Speaker Boehner will see the writing on the wall and stop wasting taxpayer dollars defending this outrageous law and instead work to repeal it. Paul Clement’s record of zero for four speaks for itself.”
House Speaker John Boehner (R-Ohio) had BLAG vote on hiring an outside attorney, former Solicitor General Clement, to defend DOMA after the Obama administration said it believes DOMA unconstitutional. So far, Clement and his team have lost decisions in Golinski v. OPM, Dragovich v. Treasury, Gill v. OPM, and Windsor.
House minority leader Nancy Pelosi’s office issued a statement noting that Clement has “spent over $700,000 in taxpayer funds” while working on 14 DOMA-related cases.