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Religious Tolerance logo

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

House Republicans defend DOMA. Schedule of
events. Summary judgment motion. Related case.

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This topic is a continuation of an earlier essay

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2011-APR-18: House of Representatives take up defense of DOMA:

National Public Radio reported that a GOP source revealed that: "Boehner has enlisted a big-name Republican lawyer to argue for the constitutionality of the Defense of Marriage Act, or DOMA."

Rep. Trent Franks (R-AZ) addressed the House Judiciary Committee. He suggested that the administration decided to no longer defend the constitutionality of DOMA in order to satisfy the gay rights community which includes some of his largest donors. He said:

"Far from cautious and deferential, the president's decision was a badly opportunistic attempt to free himself from a political dilemma. The president and the administration had a duty to defend the Defense of Marriage Act, but powerful constituencies of the president did not want the president to defend it. And unfortunately, politics trumped duty."

Rep. Jerrold Nadler, (D-NY) disagreed, saying:

"Rather than defending DOMA in court, Congress should be working to repeal it. There is no redeeming moral value to a law whose sole goal and sole effect ... is to persecute a group of people for no reason and no benefit to anyone else." 1

Speaker John Boehner convened the Bipartisan Legal Advisory Group (BLAG). The three Republicans on the five-person group decided to hire an outside attorney to replace the Department of Justice in defending DOMA. They chose Paul Clement, a former United States Solicitor General and partner at the legal firm King & Spalding.

King & Spalding withdrew from the case on April 25, 2011. Clement resigned from that firm and joined Bancroft PLLC in order to continue his representation. He argued that "... representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." 2 

Also in April, Paul Clement sent a memorandum to the federal court asking that the three Republican members of the Bipartisan Legal Advisory Group [BLAG] of the U.S. House of Representatives be permitted to defend DOMA's constitutionality. This would only be a restricted role, limited to defending only Section III of the Act and only against the plaintiff's assertion that it violates the Equal Protection clause of the Fifth Amendment of the U.S. Constitution. 3

Edith Windsor issued a statement saying:

"I am very disappointed that the House of Representatives has decided to intervene in my case in order to try to prevent me from obtaining a refund of the $363,000 in estate taxes that I should never have had to pay in the first place." 4

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Schedule of events in federal court during 2011:

On MAY-09: A conference involving all active parties was held.

On MAY-11: U.S. District Court Magistrate Judge James C. Francis IV filed an timetable for the case:

  • Edith Windsor's motion for summary judgement is due between JUN-24 and JUL-15. This motion was filed on JUN-24. 5
  • The exchange of evidence is scheduled to be completed by JUL-11.
  • BLAG's response is due between AUG-01 and AUG-15. This response was filed on AUG-01.
  • Legal findings should be completed between AUG-19 and SEP-23. 5

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2011-JUN-24: Lawyers for Edith Windsor file summary judgment motion:

Windsor's lawyers from the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union asked Magistrate Judge James C. Francis IV for summary judgment. They asserted that there is no valid reason why the federal government should treat Ms. Windsor's marriage to the late Thea Clara Spyer any differently from an opposite-sex marriage. They wrote:

"DOMA is a sweeping statute that rewrites over one thousand federal laws and overturns the federal government's long-standing practice of deferring to state determinations of marital status. Throughout history, the federal government has never married people, leaving that to the states. ... [The case asks the straightforward question of whether the federal government should be allowed] "... to levy a substantial estate tax upon Edie Windsor simply because, as a lesbian, she was married to a woman, instead of a man? ..."

"... it has taken until the second decade of the twenty-first century for the Attorney General of the United States and several other federal courts (in California, Massachusetts and the Ninth Circuit Court of Appeals) to see the obvious impermissibility of such blatant discrimination under the United States Constitution speaks ... more to the lingering legacy of stereotypes and prejudice than it does the difficulty of the constitutional principles at issue. ... it is well-settled that legislation should not burden individuals on the basis of a core trait that they cannot or should not have to change. ... sexual orientation is a core part of individual identity." 6

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2011-JUL-01: Justice Department files legal brief in related case:

Karen Golinski is a lawyer working for the 9th U.S. Circuit Court of Appeals in San Francisco, CA. She is married to another woman. After the the U.S. Office of Personnel Management refused to authorize family health insurance coverage for her spouse, she launched a lawsuit.

As noted in the previous essay, on 2011-FEB-23, the Obama administration changed its policy on DOMA by announcing it would no longer defend the law against court attacks on its constitutionality. On JUL-01, they apparently changed their policy once more. They filed a brief that actively attacks the constituionality of DOMA's Section III. This is the section that requires the federal government to not grant rights, benefits, obligations and protections to those legal marriages recognized in the District of Columbia and some states where both spouses are of the same gender.

The Justice Department brief supports Golinski's claim and asserts that DOMA violates the Equal Protection Clause of the Fifth Amendment of the U.S. Constitution. It says in part:

"The official legislative record makes plain that DOMA Section 3 was motivated in large part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3." 7

The term "animus" means "strong dislike or enmity; hostile attitude." It is derived from the Lati word "animus" which means "soul, mind, courage, desire" 8 It would seem to be an accurate term to describe the majority opinion in Congress towards LGBTs during 1996 when DOMA became law. This was a time when public opposition to same-sex marriage was over 65%. However, some religious and social conservatives object to the term "animus" because they interpret it as a synonym of "hate." For example, "Aaron" posted a comment on a Family Research Council website:

"... the President’s attorneys argue that the marriage law is unconstitutional because it was motivated by 'hate.' That will surprise the 85 Senators, 342 House members, and President Clinton who supported it. More importantly, it might stun the majority of Americans–and prospective Obama voters–who still believe in marriage as the union of a man and woman. As someone who knows the political advantages of supporting man-woman marriage, I question the wisdom of any candidate who calls more than half the country 'haters' on the eve of their reelection campaign. Is it 'hateful' to think an age-old institution shouldn’t be changed on the whim of a vocal minority?" 9

This seems like a strange comment when multiple national polls during 2010 and 2011 reveal that about a 53% majority of of American adults favor same-sex marriage and only 45% are opposed.

Tobias Barrington Wolff, a law professor at the University of Pennsylvania said:

"This brief represents the concrete manifestation of a complete paradigm shift in the federal government's position on anti-gay discrimination and the constitutional rights of married same-sex couples." 7

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This topic 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. Carrie Johnson, "Republicans Mount Defense Of Anti-Gay Marriage Law," National Public Radio, 2011-APR-18, at:
  2. "Paul Clement," Wikipedia, as at: 2011-JUL-18, at:
  3. "Memorandum of points and authorities ...: Edith Schlain Windsor v. United States," United States District Court Southern District of New York, 2011-APR-18, at: This is a PDF file.
  4. Devin Dwyer, "New York Gay Widow Fights for Estate-Tax Refund After 40-Year Union," ABC News, 2011-APR-19, at:
  5. Chris Geidner, "Judge Sets Schedule in Edith Windsor's DOMA Challenge," 2011-MAY-11, at:
  6. Mark Hamblett, " 'Windsor' Plaintiffs Attack Federal DOMA on All Fronts," New York Law Journal, 2011-JUL-12, at:
  7. Sudhin Thanawala, "Administration supports lesbian employee's case," Associated Press, 2011-JUL-02, at:
  8. "animus,", at:
  9. "aaron,"  "All over the Law like a Cheap Suit," Family Research Council, 2011-JUL-11, at:
  10. "Windsor v. United States," Wikipedia, as on 2011-SEP-21, 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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Copyright © 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JUL
Latest update: 2011-OCT-20
Author: B.A. Robinson

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