2nd Circuit Decision Tees Up Potential Same-Sex Marriage SCOTUS Blockbuster

BY ZACH LUDENS — In a decision to be reviewed by United States Supreme Court, the United States Court of Appeals for the Second Circuit last month found a key provision of the Defense of Marriage Act (“DOMA”) unconstitutional in Windsor v. United States. DOMA, enacted in the face of the 1996 U.S. Presidential election, defined the terms marriage and spouse in the context of all federal laws and regulations and gave states the explicit permission to refuse to recognize same-sex marriages performed under the laws of other states.

In holding the key provision of DOMA—the section which defined marriage as a union between a man and a woman—unconstitutional, the Second Circuit followed the lead of a recent First Circuit decision that also invalidated the key DOMA provision.

In what has to be one of the most interesting twists of the case, the United States—as represented by the Executive Brach through the United States Department of Justice—actually decided to side with the woman suing against enforcement of DOMA. As President Obama had instructed the Department of Justice to stop defending the law against constitutional challenges, the President’s Department of Justice faced off against the Bipartisan Legal Advisory Group—affectionately labeled BLAG—of the United States House of Representatives.

In granting cert., the Supreme Court asked the parties to brief whether or not it could hear the case because the Executive Branch refused to defend the law.

Windsor may sound what many, including this author, believe to be DOMA’s death knell. The plaintiff, Edith Windsor, married her spouse in Canada in 2007. In 2009, Windsor’s spouse passed away while the couple was living in New York. At the time, New York did not allow gay marriage. Therefore, under I.R.S. guidelines, Ms. Windsor faced an enormous estate tax liability–$363,053–that she would not have had to pay had she been in a heterosexual marriage. New York has since changed course and now allows same-sex marriage, but the die was cast for a blockbuster case.

The key provision of DOMA is Section 3, which states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Because the I.R.S. is a federal agency, DOMA barred the I.R.S. from recognizing Windsor’s marriage for the purposes of taxation of her spouse’s estate.

In a two-to-one panel split, the Second Circuit panel in Windsor did more than just hold DOMA unconstitutional; it also redefined equal protection law in relation to sexuality. The Second Circuit held that distinctions based on sexuality are quasi-suspect and entitled to intermediate, or heightened, scrutiny when reviewing whether or not laws violate the Equal Protection Clauseas reverse incorporated through the Due Process Clause of the Fifth Amendment to the federal government.

Under existing precedent that declined to classify homosexuals as a suspect class, a distinction based on sexuality need only be based on some sort of rational basis. In classifying homosexuals as a quasi-suspect class, however, the Windsor court applied intermediate scrutiny. With intermediate scrutiny being applied, the distinction must be “substantially related” to an “important governmental objective.” Additionally, the important governmental objectives need to be stipulated at the outset of the distinction and cannot be created after the fact.

In order to declare sexuality as a quasi-suspect classification, the Windsor court utilized a four-factor test:

In applying these factors, the Windsor court found that all four justified heightened scrutiny:

  • “[H]omosexuals as a group have historically endured persecution and discrimination.”
  • “[H]omosexuality has no relation to aptitude or ability to contribute to society.”
  • “[H]omosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages.”
  • “[T]he class remains a politically weakened minority.”

Additionally, the Second Circuit panel made an interesting comparison between homosexuals today and women at the time that the Supreme Court classified gender as a quasi-suspect classification:

There are parallels between the status of women at the time of Frontiero and homosexuals today: their position “has improved markedly in recent decades,” but they still “face pervasive, although at times more subtle, discrimination . . . in the political arena.”

Even after finding that sexuality was a quasi-suspect distinction that triggered a more rigorous review, the Windsor court was tasked with deciding whether or not this distinction was “substantially related” to furthering “important governmental objectives.” To do so, the court had to look at a host of different objectives provided by BLAG.

BLAG offered four governmental objectives that it felt were furthered by the distinction based on sexuality. The Windsor court found that none of these governmental objectives were “exceedingly persuasive” nor that the distinction was “substantially related” to furthering “important governmental objectives.” The four objectives offered were as follows:

  • Maintaining a  uniform definition of marriage
  • Protecting the fisc
  • Preserving a traditional understanding of marriage
  • Encouraging responsible procreation

Because the Second Circuit panel found that none of these objectives met the standard required under intermediate scrutiny, it held Section 3 of DOMA unconstitutional. In coming to its decision, the court stated

It is difficult to say whether homosexuals are “under-represented” in positions of power and authority without knowing their number relative to the heterosexual population. But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private—which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas.

The Second Circuit brushed aside BLAG’s other arguments:

To the extent that BLAG is suggesting that Congress’ laws might actually influence sexual orientation, there is no evidence to support that claim (and it strikes us as far-fetched).

This case presents the perfect storm for the Supreme Court to address the constitutionality of the Defense of Marriage Act because it involves an area of law in which states are usually completely deferred to. Although that is the case, the federal government does not defer to the states when it tries to define what a marriage is under DOMA. With a growing number of states legalizing gay marriage, the issue is being pushed to the forefront.

In a state in which gay marriage is not allowed and DOMA is enforced, there is a very weak equal protection argument to be made against the federal government. But in cases where a state does allow for, or recognizes, gay marriage, this situation is completely reversed. Suddenly, the federal government’s definition of marriage becomes more problematic in light of an equal protection argument.

Here, the law governing whether a couple was married at the time of a death is state law. Even under I.R.S. regulations, state law governs whether a couple was considered to have been married. So, under state law, Edith Windsor and her spouse were just that—married. But, when her wife died, DOMA required that the I.R.S. refuse to recognize their marriage. Not only did DOMA mean that, in the eyes of the federal government, Edith Windsor was never married to her wife but it also proscribed that Edith Windsor had to pay $363,053 in estate taxes that a heterosexual in her very position would not have had to pay. For these reasons, the United States Court of Appeals for the Second Circuit found that Edith Windsor was deprived of the equal protection of laws guaranteed to her by the Fifth and Fourteenth Amendments. Because Edith Windsor’s case is not isolated and could happen to any homosexual couple similarly situated, the Second Circuit decided to strike down the key provision of the Defense of Marriage Act.

Regardless of an individual’s stance on gay marriage, the issue has found its way to the forefront of public debate. Earlier this year, the Department of Justice filed two petitions for writs of certiorari in an attempt to get the Supreme Court to decide the constitutionality of DOMA. Now, because officials in the Solicitor General’s office agree with this author that Windsor v. United States presents the perfect storm in which DOMA could be felled for good, the Obama administration took the stance that “this case now provides the most appropriate vehicle for [the Supreme Court’s] resolution of the constitutionality of Section 3 of DOMA.”

With the President and Congress disagreeing over whether or not DOMA is constitutional, the Supreme Court will have to intervene to resolve the dispute. Windsor provides the perfect vehicle in which the Court can do that. And as of December 7, 2012, the ball is in the supremest of courts, with the Supreme Court granting the writ of certiorari.

In granting cert., the Supreme Court certified the original question and asked the parties to brief two more:

  • Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State
  • Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives the Court of jurisdiction to decide Windsor
  • Whether BLAG has Article III standing

In answering these questions, most observers, including this author, are most interested in how the Court decides to classify same-sex individuals. Will the Court continue with past precedent and classify same-sex individuals in a way that demands only rational basis review, or will the Court reverse course and readdress the issue? This could largely determine the outcome of the case.

But, only one thing is for certain: The constitutionality of DOMA will be addressed. Everything else is up to anyone’s guess at this point.

NOTE: Another controversial provision of DOMA, giving states the discretion not to recognize same-sex marriages legally performed in other states, was not addressed in Windsor.

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