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Religious Tolerance logo

Windsor v. United States" and "Gill" lawsuits attempting to have the
federal "Defense of marriage act" (DOMA) declared unconstitutional

Legal terms affecting DOMA. Obama administration
abandons defense of DOMA. Briefing request.

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This topic is a continuation of an earlier essay

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The concepts of scrutiny and suspect classification:

These are two legal terms on which the future of DOMA as well as laws and constitutional amendments prohibiting same-sex marriage depend.

  • "Scrutiny:" This is a concept that is sometimes used to determining a law's constitutionality. Any law that affect a person's fundamental rights or that classifies people into groups receives one of three levels of scrutiny:

    • "Rational basis," which is the lowest level of scrutiny.

    • "Intermediate scrutiny (a.k.a. "exacting scrutiny" and "heightened scrutiny"); and

    • "Strict scrutiny," which is the most rigorous level.

"Rational basis" is the default level. This level of scrutiny is met whenever the government's action under the law can be shown to be rationally related to a legitimate government interest. 1 However, it normally does not apply in those cases where a "suspect classification" or "quasi-suspect classification" is involved, or when a fundamental human right is involved. 1

  • "Suspect classification:" This refers to a group that is likely to be discriminated against. There is no generally accepted criteria that must be met to achieve this classification, although certain criteria have been used by courts in the past:

    • The group has actually been discriminated against and/or been subject to prejudice, hostility and/or stigma.

    • They have an immutable trait -- like gender -- and/or a highly visible trait -- like race.

    • The group is a numerically small minority.

    • The group's distinguishing characteristics do not prevent it from contributing meaningfully to society. 2

There is a near consensus among religious conservatives that homosexuality is a chosen and changeable behavior and thus not an immutable trait. There is a near concensus among others -- religious liberals, secularists, human sexuality researchers, psychologists, psychiatrists, lesbians, gays, bisexuals, etc. that homosexuality is discovered, fixed in adulthood, and an immutable trait. Unfortunately, these two "solitudes" are not entering into dialogue with each other to attempt to reach a general consensus.

It is unclear what level of scrutiny should be applied to like DOMA, or to other laws where sexual orientation is involved. Courts have not reached a definitive position:

  • The Romer v. Evans case (1996) involved an amendment to the Colorado Constitution. The amendment would have nullified past and future municipal laws that prohibited discrimination against lesbians and gays. The U.S. Supreme Court determined that the amendment was motivated by a desire to harm sexual minorities, which can never be a legitimate government interest. The court declared the amendment unconstitional because it was unrelated to any legitimate government interest; it had no rational basis. 3

  • In the Lawrence V. Texas case (2003), the U.S. Supreme Court declared sodomy laws in 16 states to be unconstitutional, but did not reveal the level of scrutiny that it used in the case. 3

  • The 11th Circuit Court of Appeals once ruled that the Lawrence v. Texas case did not apply strict scrutiny. However, the California Supreme Court once ruled that laws that discriminate on the basis of sexual orientation should receive strict scrutiny.

As one might expect, there is no consensus on what level of scrutiny should be applied cases involving same-sex marriage:

  • The Obama Administration agrees with Edith Wilson and her lawyers that marriage is a fundamental human right for persons of all sexual orientations and for couples of all sexual makeups. They believe that DOMA should be subjected to heightened scrutiny. In order for DOMA to be found constitutional, it would then have to be shown that the law advances an important or compelling government interest.

  • The Republican majority on the House Bipartisan Legal Advisory Group (BLAG), which is attempting to preserve DOMA, claims that marriage is a fundamental human right only for opposite-sex couples. In practice, this would limit marriage to heterosexuals and bisexuals. Thus, DOMA should not be subjected to heightened scrutiny. If any "rational basis" can be found for DOMA then it would be considered constitutional.

  • In the constitutional challenge to DOMA by the two consolidated Massachusetts cases Gill v. OPM in Boston's U.S. District Court, judge Joseph Tauro applied only rational scrutiny. He determined that Section 3 of DOMA violates the equal protection principle in the Due Process clause of the Fifth Amendment of the U.S, Constitution. He found that DOMA also violates the Tenth Amendment's clauses that deals with state jurisdiction.

  • In the DOMA challenge by Golinski v. Office of Personnel Management (OPM), Judge Jeffrey White ruled that the law failed under either rational or heightened scrutiny. More details.

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2011-FEB-23: Obama administration abandoned its defense of DOMA's constitutionality:

At this time, there were two active lawsuits attempting to have DOMA declared unconstitutional: Windsor v. United States case in New York as described in this essay, and a similar lawsuit Pedersen v. OPM in Connecticut. Federal Attorney General Eric H. Holder, Jr. informed House Speaker John A. Boehner by letter that the administration could no longer defend the constitutionality of Section 3 of the DOMA law. This is the section that requires the federal government to not recognize those legal, registered marriages in the District of Columbia and a growing number of states throughout the U.S. where the spouses were of the same gender.

Holder wrote:

"The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional. ... [There is a] significant history of purposeful discrimination against gay and lesbian people ... [and a] growing scientific consensus [which] accepts that sexual orientation is immutable. ... there is a growing acknowledgment that sexual orientation" has nothing to do with a person's ability to perform or contribute to society.

Holder cited "evolutions" in legislation, community practices and attitudes, case law, and in the social sciences, all of which make clear that: "sexual orientation is not a characteristic that generally bears on [the government's] legitimate policy objectives."4

The administration is required to continue to enforce DOMA until it is definitively declared unconstitutional or is repealed by Congress. However, they have decided to not defend it against attacks on its constitutionality during lawsuits.

Roberta A. Kaplan is one of the attorneys representing Ms. Windsor. She said:

"We're extremely pleased that the president and the Department of Justice have now recognized what we initially asserted when we filed the case -- there was no way to justify the fact that our client had to pay a $350,000 estate tax bill simply because she was married to a woman. We said the government would have a very hard time justifying the disparate treatment and it turns out we were right -- there really is no way to justify it." 4

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2011-APR-05: House Democrats asked Speaker John Boehner (R-OH) for briefing on DOMA defense:

John Boehner (R-OH) convened the House of Representatives' Bipartisan Legal Advisory Group (BLAG) which consists of the Speaker, majority and minority leaders, and the majority and minority whips. The three Republicans on the five-person group unanimously decided to hire an outside attorney to replace the role of the Department of Justice in defending DOMA during legal challenges to its constitutionality.

Subsequently, Rep. Barney Frank (D-MA), Tammy Baldwin (D-WI), and other co-sponsors of DOMA repeal legislation called upon House Speaker John Boehner to inform them about the details, cost, and probability of success of the House’s defense of DOMA, They wrote:

"It is our understanding that deadlines for Congressional action are fast approaching and that House General Counsel or outside counsel retained to represent the House must appear and move to intervene or otherwise participate, if it chooses to do so, in at least one case, Windsor v. United States of America, on or before April 18, 2011."

"We therefor ask that you brief all interested Members before April 19, 2011 regarding the course of action with regard to Windsor case and any other proceedings where the House intends to defend DOMA. Among other things, we are interested in a status report on who will be representing the House, estimates regarding the cost and length of proposed litigation efforts, the anticipated role of the House in litigation (i.e., intervenor or amicus curiae), and your assessment regarding the likelihood of success on the merits.  If you or House General Counsel already have arranged for representation by outside counsel, we would welcome and appreciate their participation in this briefing."

Equality Matters, a pro-LGBT equality group, commented:

"That deadline will put Boehner in the uncomfortable position of deciding how to proceed with defending the law. If he decides to use the arguments laid out in DOMA’s original House report (homosexuality offends Judeo-Christian morality, same-sex marriage will encourage kids to become gay, etc.), he risks alienating the majority of Americans that now support full marriage equality and independent voters who have become increasingly uncomfortable with anti-gay rhetoric."

"If Boehner chooses to advance a different defense of DOMA, however, avoiding those arguments as the Obama administration did in earlier DOMA lawsuits, he is likely to come under intense criticism from right-wing family groups who expect Republicans to use their anti-gay talking points to defend the law."

"Both strategies have already failed in federal court." 5

On APR-07, Speaker Boehner discussed the cost of defending DOMA in court at a press conference. He said:

"I do not have an estimate. But we were placed in a position where we were in effect allowing the administration to determine the constitutionality of a bill that passed the United States Congress because they [the administration] were unwilling to defend it. I don’t think the House had any choice but to take the position that we were going to defend the work that the Congress — and only the courts are in the position of determining the constitutionality of any bill." 6

We have been unable to find any response by Speaker Boehner to the other questions raised by the House Democrats.

BLAG's original funding was authorized at $500,000. This was increased to $1,500,000 in 2011-OCT.

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Discussion of the Windsor v U.S. case continues...

Discussion of the Gill case continues...

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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. "Rational basis review," Wikipedia, as on 2011-OCT-02, at:
  2. "Suspect classification," Wikipedia, as on 2011-SEP-15, at:
  3. "Intermediate scrutiny," Wikipedia, as on 2011-SEP-09, at:
  4. Mark Hamblett, "Obama No Longer Will Defend Marriage Act," New York Law Journal, 2011-FEB-24, at:
  5. Carlos Maza, "As Court Deadline Nears, Democrats Ask Boehner About GOP’s DOMA Defense," Equality Matters, 2011-APR-05, at:
  6. Chris Johnson, "Boehner has no estimate on DOMA defense costs," Washington Blade, 2011-APR-07, at:

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

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > Gill > here

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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JUL
Latest update: 2012-NOV-26
Author: B.A. Robinson

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