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Religious Tolerance logo

"United States v. Windsor" lawsuit attempts to have federal
DOMA ruled unconstitutional in the U.S. Supreme Court

2013-MAR-27: Supreme court hears
oral arguments in DOMA case (Cont'd).

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The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States

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This topic is continued from the previous essay

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2013-MAR-27: About the United States v. Windsor case:

The U.S. Supreme Court spent part of the previous day, MAR-26, hearing oral arguments in the California Proposition 8 case. Prop. 8 was passed on election day of 2008-NOV. At least temporarily, it terminated all future same-sex marriages in California .

On 2013-MAR-27, The Court heard oral arguments on United States v. Windsor case which challenges the constitutionality of the Defense of Marriage Act (DOMA). It was passed by Congress in 1996 and signed into law by President Bill Clinton (D).

Numerous federal district courts and both the 1st and 2nd U.S. Circuit Courts of Appeal have found DOMA to be unconstitutional. The Obama administration accepted the findings of these court cases and agreed that DOMA is clearly unconstitutional. The administration is required by the Constitution to enforce any law passed by Congress and signed into law by a President until and unless it is determined to be unconstitutional. However, the Attorney General decided that his department could no longer ethically defend DOMA's constitutionality in the courts. Thus, the administration is in the strange position of enforcing DOMA even while refusing to uphold its constitutionality.

This case, "Windsor v. United States" -- one of the many cases challenging DOMA's constitutionality within the federal court system -- was accepted by the U.S. Supreme Court for review and a final decision on its constitutionality.

This should be a simple case for the Court to resolve because the following:

  • The U.S. Constitution states that all powers that it does not assign to the federal government are reserved for the States or for the people.

  • The power to define marriage is not assigned to the federal government by the Constitution. Therefore, that power is reserved for the individual states or for the people.

  • In 1996, Congress passed the Defense of Marriage Act (DOMA). It was signed into law by President Clinton. DOMA prevents the federal government from recognizing any same-sex marriages legally solemnized in the District of Columbia or in one of the nine states that has currently legalized such marriages. In effect, DOMA defines the criteria for marriage for the federal government .

  • The federal government has no power to do this. Thus DOMA is unconstitutional.

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2013-MAR-27: Comments by the Justices during the oral arguments:

  • ABC News comments:

    "A majority of the Supreme Court's justices expressed skepticism today about the federal law defining marriage as between one man and one woman. ... Justice Anthony Kennedy, viewed as a key swing vote, appeared critical of the federal government's declining to recognize marriages that states have made legal. ... Kennedy cited concerns about federalism, saying there was a 'real risk' of the federal law running into conflict with a state's power.The four liberal justices expressed similar concerns over federal power, as well as other concerns about equal protection of gay [, lesbian, and bisexual] Americans under the law." 1

  • Justice Kennedy said:

    "The question is whether or not the Federal government, under out [sic] federalism scheme, has the authority to regulate marriage. 1 ... That authority undermines the states' role in the federal system." 2

  • Justice Ruth Bader Ginsburg suggested a scenario commonly faced by legally married same-sex couples:

    ""Your spouse is very sick, but you can't get leave. One might well ask, what kind of marriage is this?" 1

She described two types of marriages in states that have achieved marriage "equality:" One type for opposite-sex couples; the other for same-sex couples. She described them as:

"... the full marriage, and then this sort of skim milk marriage." 1

  • Justice Elena Kagan read into the record a portion of a House report which accompanied passage of the DOMA law. It stated that Congress was approving the law to express "moral disapproval of homosexuality." In the famous Supreme Court ruling in Lawrence v. Texas -- the decision that decriminalized same-gender sexual behavior by adults in private -- the Court ruled that moral disapproval provides insufficient grounds to legitimize and justify the passage of laws.

  • Paul Clement defended DOMA on behalf of the Bipartisan Legal Defense Group [BLAG] of the House. This is a committee composed of three Republicans and two Democrats. It can hardly be considered bipartisan, because when they decide whether or not to take an action, the vote is always 3 to 2 along party lines.

Justice Sonia Sotomayor asked him:

"What gives the federal government the right to be concerned at all at what the definition of marriage is?" 1

A major point of contention by two of the four conservative Justices during the oral arguments was that if the Obama administration had concluded that the federal DOMA law is unconstitutional, they should have ignored the law, and started to treat same-sex couples equally to opposite-sex couples. Two conservative Justices criticized the Administration:

  • Chief Justice Roberts said that the Administration's actions "unprecedented". He later said that this suggests an absence of "courage" and resulted in the solution of the conflict being shifted from the executive branch to the Supreme Court.

  • Justice Antonin Scalia said that it is a "new world" where the Attorney General can decide that a law is unconstitutional and is yet not so unconstitutional that the executive branch won't enforce it. 3

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Comments after the hearing by plaintiff Edith Windsor and her team:

C-Span allows the following video to be shared. It is a must-see video:


  • Plaintiff Edith Windsor, 83, said that she felt:

    "... very respected -- and I think it's gonna be good. ... I think what happened is that at some point somebody came out [of the closet] and said 'I'm gay.' which gave a couple more people the guts to do it. As we increasingly came out, people saw that we didn't have horns. People learned that we were their kids, and their cousins, and their friends." 3

  • House Minority Leader, Nancy Pelosi said:

    "I'm very optimistic that DOMA will be struck down. It doesn't seem to have a rational basis, which is one of the criteria: rational basis, justification for being." 3

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Discussion of the oral arguments in U.S. v. Windsor continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Chris Good & Ariane de Vogue, & Matt Larotonda, "Gay Marriage, Round 2: Majority of Supreme Court Skeptical of DOMA," ABC News, 2013-MAR-27, at:
  2. "Supreme Court likely to strike down gay marriage ban DOMA," Chicago Pride, 2013-MAR-28, at:
  3. "Toronto same-sex union at centre of U.S. top court hearing ," The Toronto Star, 2013-MAR-28, at:
  4. "United States v. Windsor: Oral argument, Edith Windsor reaction," C-Span video, 2013-MAR-27, at:

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Site navigation:

Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Unconstitutional > Windsor v. U.S. > here

Home > "Hot" topics > Homosexuality > SSM > SSM menu > DOMA > Unconstitutional > Windsor v. U.S. > here

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Copyright © 2013 by Ontario Consultants on Religious Tolerance
Originally posted: 2013-MAR-12
Latest update: 2013-APR-08
Compiler: B.A. Robinson

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