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Analysis: Supreme Court Invalidates Section 3 of DOMA, Paving the Way for Federal Recognition of Same-Sex Marriages

In the end, the Supreme Court today struck down a 1996 federal law that is considered one of the most odious, discriminatory federal laws in existence. It's rare for the court to invalidate a federal law, and even rarer when the law was passed by wide majorities.
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The Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA) today in United States v. Windsor, brought by plaintiff Edith Windsor. Windsor was seeking a $363,000 tax refund that she was forced to pay after her wife passed away in 2009. A federal statute says that a surviving spouse does not have to pay the estate tax, but under DOMA, the definition of "spouse" means only a spouse of the opposite sex. Windsor would not have had to pay the $363,000 had she been married to a man instead of a woman. Today, the Supreme Court ruled that that is unconstitutional under equal protection principles.

The opinion is 5-4 and written by Justice Anthony Kennedy, so it is largely what people might expect from that type of opinion.

Initially, the court addresses the question of standing. Windsor sued the United States government, and in February 2011 the executive branch announced that it believes the statute is unconstitutional and would stop defending it in courts, including the Supreme Court. When Windsor won at the district court and Second Circuit Court of Appeals, the Justice Department agreed with the decisions but appealed anyway, claiming to have a sufficient injury for purposes of being able to appeal to a higher court. They argued that even though they agree that the law is unconstitutional, as the executive branch, their task is to enforce it, and both judgments below were orders from courts demanding that they stop enforcing the law and pay Windsor $363,000 from the United States Treasury.

Congress, through the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, stepped in to mount a defense of the law's constitutionality. The Supreme Court, in the end, issued no ruling on whether BLAG is a proper party in the case as a legal advisory group for one house of Congress; instead, they held that the injury suffered by the Justice Department is enough for the court's jurisdiction to "say what the law is."

As anticipated by many court observers, there is no discussion of the standard of judicial scrutiny in the way that the court has traditionally analyzed those standards. That is to say, instead of deciding whether the law should be reviewed under a more heightened form of judicial scrutiny that gives more deference to the challengers to same-sex marriage bans or the restrictive federal definition of marriage, using the analysis the court has said should be undertaken, the court instead discusses "careful" review of laws that are more suspicious. This approach inches close toward "suspect class" status for sexual orientation -- the idea that writing a law that treats people of different sexual orientations differently on the basis of their sexual orientation is "suspect" because it classifies individuals based on a trait that is used to discriminate against them -- but the court doesn't announce a specific level of review to apply. The furthest the court goes is mentioning that the intrusion into state power by the federal government warrants special consideration, a lot like the First Circuit's decision in GLAD's challenge to the same law, Gill v. Office of Personnel Management:

In determining whether a law is motived by an improper animus or purpose, "'[d]iscriminations of an unusual character'" especially require careful consideration. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The Supreme Court cites the House Report on the law as more proof of Congress' desire to harm gays and lesbians. (The House Report says outright that DOMA was enacted out of Christian morality and to channel gays and lesbians into heterosexual marriages. Another part of the report, not cited in the opinion, mentions promoting heterosexuality as a goal of the law.)

Kennedy writes, "Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage."

The court speaks in glowing terms about same-sex couples, writing:

DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. ...

DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages
are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.

The takeaway is not dissimilar to the holding in 1996's Romer v. Evans, also written by Justice Kennedy (though, of course, that was the 14th Amendment's equal protection guarantee instead of the Fifth's):

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

While Justice Kennedy's majority opinion goes out of its way to suggest that the holding only applies to existing same-sex marriages, Justice Scalia's dissent, much like his dissent in Lawrence, warns anyone against believing the decision will stay limited:

Now we are told that DOMA is invalid because it demeans the couple, whose moral and sexual choices the Constitution protects, ante, at 23 with an accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

His opinion goes on to try to prove his point by quoting large sections of the majority opinion and crossing out references to DOMA, replacing them with state marriage bans, purporting to suggest that the reasoning will lead to striking down state marriage bans eventually. (Notably, Justice Kennedy's opinion in Lawrence itself did suggest that the holding in Lawrence had nothing to do with recognizing same-sex marriages.)

The Supreme Court's four conservatives dissented in the case but filed some separate dissents, and some cross-joined each other's dissents. Chief Justice John Roberts wrote a separate dissent focusing on standing, but he also said he believes that DOMA is constitutional and should be reviewed under rational basis, the most lenient form of judicial scrutiny. The justices had several different theories on standing, and the chief's opinion suggested that the court should have ruled there was no standing to review DOMA in this case.

This was a narrow opinion with a holding that will likely not be considered far-reaching, refusing to address the level of scrutiny or decide the case in a way that will definitively resolve all marriage questions. However, in the end, the Supreme Court today struck down a 1996 federal law that is considered one of the most odious, discriminatory federal laws in existence. It's rare for the court to invalidate a federal law, and even rarer when the law was passed by wide majorities at a time when most of the country would not have thought twice about the law's impact. (It didn't impact anyone in a direct way until Massachusetts legalized marriage equality.)

Going forward, the various agencies of the federal government, the president, the Justice Department, and others will continue working to implement the Supreme Court's ruling and work on deciding how to apply federal benefits to same-sex as well as opposite-sex couples, as equal protection principles demand.

Scottie Thomaston is a contributor at Courage Campaign Institute's, where this piece originally appeared.

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