The Constitutionality of the Federal Defense of Marriage Act

On March 27, 2013, the Supreme Court heard arguments dealing with same sex marriage in the matter of United States v. Windsor, which questions whether it is constitutional for the federal government to refuse to recognize same sex marriages that have been recognized by other states.

The law, the Defense of Marriage Act (DOMA), defines marriage, at least for federal purposes, as between a man and a woman.  Section three of the Act, which is the section at issue in the case, states that, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife” for purposes of “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”

The Plaintiff in the case, Edie Windsor, brought suit against the IRS because it denied her a federal tax refund following the 2009 death of Thea Spyer, her partner for over forty years.  The two were finally married in Canada in 2007, but resided in the State of New York.  Following Spyer’s death, Windsor would have been eligible for a federal tax exemption in excess of $363,000 on her inheritance of her wife’s estate.  Windsor sued, arguing that if Spyer had been a man – if federal law had accorded their marriage the same status as heterosexual marriages recognized by their state – she would have paid no taxes.

So, the issue before the Supreme Court is whether the federal government must recognize same sex marriages that occur in states where it is legal.  More practically: if DOMA is ruled unconstitutional, then same sex couples can get married in states that allow gay marriage while residing in states that do not and still retain federal (but not state) recognition of that marriage.

Legally, whether DOMA will be upheld or struck down depends on the type of scrutiny the Court uses in its judicial review of the issue involved.  The lowest level of scrutiny is called the rational basis test, which states that if a law discriminates against a group of people, it must be for some legitimate reason.  Thus far both the US District Court as well as the US Court of Appeals for the 2nd Circuit struck down DOMA using the rational basis test and will likely do so here.

There is, however, the possibility that the Court will not reach a decision in this case.  President Bill Clinton signed DOMA into law in 1996, with just 81 of the 535 members of Congress opposed to the Act.  In the past, President Obama has defended laws passed by Congress that were challenged in court.  But, in February of 2011, the Obama administration announced it would cease defending the law because it believed the law to be invalid under the Constitution.  Because the Justice Department would not defend the law as passed by Congress, Republican Congressmen hired Paul Clement, George W. Bush’s former solicitor general, to represent the federal government in this case.  The Court, therefore, may decide not to rule on the case, because Congress did not technically receive any actual harm in order to defend it and because the Obama administration is not a viable party because it agrees with the lower courts.

Surviving this argument, and given the remainder of the questions the Justices asked at oral argument, it appears the Court may be leaning to overturn DOMA, though.  Justice Kennedy, who is thought to be the Court’s swing vote on this issue, acknowledged that there were 1,100 references to marriage in the federal code, and that the definition of who is married is “intertwined with daily life.”  He questioned whether the federal government may impose its own view of marriage, which has “always thought to be” the domain of the state.  Justice Ginsburg said that if same sex couples don’t receive federal pension, Social Security, and family medical leave benefits, “what kind of marriage is it” she questioned.  She said the law basically created two classes: real marriage and “skim-milk marriage.”  And Justice Sotomayor asked: “What gives the federal government the right to define marriage?”

One final question asked by Kennedy, however, caused Court observers to speculate that he would join the four liberal-leaning justices to create a majority against the Act: when questioning the reach of DOMA into state’s rights, he said it “presents a real risk of running into traditional state police power to regulate marriage.”  Kennedy’s repeated questioning is significant because he has written the majority opinion in two of the court’s most important gay rights decisions.

A decision in the Windsor case is expected in June.

—  Mike Herbst



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