The ABCs of DOMA: A Summary of Oral Arguments in Windsor v. United States

Mary Zambreno Iowa Family Law Dickinson Law Firm Des Moines Iowa

Posted on 06/24/2013 at 12:10 PM by Mary Zambreno

On March 27, 2013, the United States Supreme Court heard oral argument in Windsor v. U.S., 699 F.3d 169 (2d Cir. 2012), a decision of the Second Circuit Court of Appeals holding Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. That section defines the word 'marriage,' for the purposes of federal statutes and regulations as 'only a legal union between one man and one woman.' As more and more states begin to recognize same-sex marriage, Section 3 has the profound effect of precluding many same-sex couples from obtaining federal benefits, including, but not limited to, military family benefits, social security benefits, multiple areas of tax categories, hospital visitation rights, and healthcare benefits. Thus, were DOMA to be held unconstitutional, the effects would be wide sweeping as DOMA impacts more than 1,000 federal laws. In Windsor, the surviving spouse of a same-sex couple married in Canada but residing in New York successfully challenged the IRS's denial, based on DOMA, of a spousal deduction for federal estate taxes. The district court in Windsor applied rational basis review the lowest form of scrutiny under which a law is upheld if it bears a rational relationship to a legitimate governmental objective when determining what level of scrutiny to apply to homosexuals as a 'class'. By contrast, the Second Circuit applied a heightened standard intermediate scrutiny under which a law is upheld against constitutional attack if the classification at issue is substantially related to an important government interest. Accordingly, the level of scrutiny strict, intermediate, or rational basis that not only DOMA, but all laws that distinguish on the basis of sexual-orientation, is subjected to is of great importance. The answer may determine both the constitutionality of DOMA, and the constitutionality of many laws that distinguish on the basis of sexual orientation in the future. Interestingly, however, the question of whether rational basis or heightened scrutiny applies was not explored by the Justices until the very end of oral arguments. Justices Kagan, Ginsburg, Sotomayor and Breyer seemed to side with the position that DOMA violates equal protection regardless of what standard applies. If the Court were to rule in this way, technically, it would not need to definitively decide what level of scrutiny applies. Chief Justice Roberts and other conservative justices focused on whether the government was arguing that Congress acted with animus towards same-sex couples when it passed DOMA, and intimated that they did not believe that DOMA was passed with the same degree of animus against gays and lesbians that the court held to violate equal protection in prior cases. Some time during oral argument was also devoted to the federalism argument that traditionally it is the states that issue marriage licenses and define 'marriage,' and the federal government has no right to tread into an area traditionally reserved to the states, with the counterargument being that DOMA does not purport to issue marriage licenses or define marriage at the state level, but merely defines marriage for purposes of federal law, and so long as the federal government has the power to enact those laws in the first place, the federal government has the power to decide and define who those laws benefit and effect. The latter seemed to be the view held by at least Chief Justice Roberts, who during oral arguments noted that if it is true that defining marriage at the federal level as between a man and women creates federalism concerns, then it must also be true that defining marriage more broadly as between a man and a woman, a man and a man, or a woman and a woman would pose the same problems. In other words, the way in which the government defines marriage cannot be the problem; rather, the fact that the federal government defines marriage altogether would have to be the problem. Justice Kennedy also focused his questioning on the federalism issue. He noted that DOMA provides Federal funding to states only when the states define marriage in the way dictated by the federal government, i.e., between a man and a woman. Based on these comments and others, Kennedy seems to believe that DOMA exceeds the scope of federal power, and unduly treads into an area typically preserved to the states. In addition, much time was devoted at oral argument to addressing issues pertaining to the Obama administration's agreement that DOMA is unconstitutional and the subsequent involvement of the House of Representatives' Bipartisan Legal Advisory Group (BLAG) as DOMA's main defender. The resolution of these questions would give the Court the ability to avoid the larger constitutional question by determining that the Court itself lacks the jurisdiction necessary to hear the case or alternatively, that BLAG lacks standing or the constitutional ability to challenge Windsor's claim. When the Court will issue its widely anticipated ruling remains unknown, however, many suspect a ruling to likely be handed down sometime in June. An audio recording and written transcript of the oral arguments in Windsor are available on the Court's website at:        

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mary Zambreno

Categories: Mary Zambreno, Family Law


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