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Religious Tolerance logo

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

2012-JUN: Southern New York Federal District
Court rules DOMA unconstitutional.

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This topic is a continuation of an earlier essay

The acronym SSM refers to "same-sex marriage.

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Federal District Court judge issues ruling that strikes down DOMA as unconstitutional:

On 2012-JUN-06, U.S. District Court Judge Barbara S. Jones filed her decision in the Windsor v. United States lawsuit. Her court became the fifth federal court in recent years that has found DOMA to be unconstitutional; none have upheld the law. Previously, there were judges at two federal courts in California who ruled DOMA unconstitutional. There was also a ruling by a district court judge in Boston that was confirmed by the 1st U.S. Circuit Court of Appeals.

She found that Section 3 of DOMA is unconstitutional. This is the section that requires the federal government to not ignore marriages that have been legally solemnized in a state like Massachusetts, New York, Connecticut, etc. where same-sex marriages are available. The government is required to withhold all benefits and protections from same-sex couples that are automatically granted to married opposite-sex couples.

In her decision, she wrote, in part:

"This case arises from Plaintiff's constitutional challenge to section 3 of the Defense of Marriage Act ("DOMA"), the operation of which required Plaintiff to pay federal estate tax on her same-sex spouse's estate, a tax from which similarly situated heterosexual couples are exempt. Plaintiff claims that section 3 deprives her of the equal protection of the laws, as guaranteed by the Fifth Amendment to the United States Constitution. For the following reasons, Defendant-Intervenor's motion to dismiss is DENIED and Plaintiff's motion for summary judgment is GRANTED. ..."

"The House Judiciary Committee's Report on DOMA discussed ... [SSM] as a "legal assault ... against traditional heterosexual marriage. The Report noted that, if homosexuals were permitted to marry, "that development could have profound practical implications for federal law" including making homosexual couples 'eligible for a whole range of federal rights and benefits. ..."

"... the House Report justified DOMA as advancing government interests in:

  1. defending and nurturing the institution of traditional, heterosexual marriage;

  2. defending traditional notions of morality;

  3. protecting state sovereignty and democratic self-governance; and

  4. preserving scarce government resources. ..."

"[Plaintiff] Windsor now argues that DOMA should be subject to strict (or at least intermediate) scrutiny because homosexuals as a class present the traditional indicia that characterize a suspect class: a history of discrimination, an immutable characteristic upon which the classification is drawn, political powerlessness, and a lack of any relationship between the characteristic in question and the class's ability to perform in or contribute to society. ..."

Though there is no case law in the Second [U.S.] Circuit [Court of Appeals] binding the Court to the rational basis standard in this context, the Court is not without guidance on the matter. For one, as the Supreme Court has observed, 'courts have been very reluctant, as they should be in our federal system' to create new suspect classes.' ... Against this backdrop, this district court is not inclined to do so now. In any event, because the Court believes that the constitutional question presented here may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class. ..."

"... at a minimum, this Court must 'insist on knowing the relation between the classification adopted and the object to be attained. ... The search for the link between classification and objective gives substance to the ' equal protection analysis.' Additionally, as has always been required under the rational basis test, irrespective of the context, the Court must consider whether the government's asserted interests are legitimate, and mindful of the Supreme Court's jurisprudential cues, the Court finds that DOMA's section 3 does not pass constitutional muster. ..."

"... Congress justified DOMA as defending and nurturing the traditional institution of marriage; promoting heterosexuality; encouraging responsible procreation and childrearing; preserving scarce government resources; and defending traditional notions of morality.... BLAG advances some, but not all of these interests as rational bases for DOMA. It additionally asserts that Congress passed DOMA in the interests of caution, maintaining consistence in citizen's eligibility for federal benefits, promoting a social understanding that marriage is related to childrearing, and providing children with two parents of the opposite sex." 1,2

Judge Jones concluded that:

  • It is unclear how DOMA promotes traditional, opposite-sex marriage. It is the individual states that decide whether to allow same-sex couples to marry. Whatever the effects of SSM are, DOMA cannot forestall them or promote them.

  • It is unclear how DOMA promotes what BLAG refers to as family values and responsible parenting i.e. marriage, conception, and child raising by one man and one woman. These are decisions that opposite-sex couples make, But DOMA has no direct impact on opposite-sex couples. Judge Jones writes:

    "It does not follow from the exclusion of one group from federal benefits (same -sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation. ... the Court cannot see a link between DOMA and childrearing."

    She appears to argue that if the federal government withholds the usual set of benefits and protections associated with marriage from married same-sex couples, then it is not going to cause gay or lesbian married couples to divorce, to seek opposite-sex spouses, and to and re-marry. It is not going to cause gay or lesbian single persons to seek opposite-sex spouses to marry either. However, she overlooks the existence of persons with a bisexual orientation. If a bisexual is looking for a spouse, they might well be more inclined to decide to seek a person of the opposite gender to marry because the couple would then receive a full set of federal benefits and protections. Thus DOMA could encourage more bisexuals to enter into opposite or "traditional" marriages, and to have children that are genetically related to themselves and their spouse. This oversight is one of the problems associated with referring to same-sex marriages as "gay marriages." The latter term promotes the idea that everyone is either homosexual or heterosexual.

  • BLAG claims that Congress was motivated to deny federal benefits from same-sex marriage couples in order to ensure that federal benefits are distributed consistently. Judge Jones rejects this argument, noting that:

    "... the means used in this instance intrude upon the state's business of regulating domestic relations. That incursion skirts important principles of federalism and therefore cannot be legitimate, in this Court's view. ... such a sweeping federal review in this arena does not square without federalist system of government, which places matters at the 'core' of the domestic relations law exclusively within the province of the states."

  • Finally, she rejects the suggestion that Congress justified DOMA as a method of conserving government resources. She writes:

    "After all, any 'arbitrarily chosen group of individuals from a government program' conserves government resources,"

    Depriving left-handed or brown-eyed spouses from federal marriage benefits would conserve government resources. But it would also fail the rational test and be fundamentally unfair.

Judge Jones concludes:

"For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED, and Defendant-Intervenor's motion to dismiss is DENIED. The Court declares that section 3 of the Defense of Marriage Act is unconstitutional as applied to the Plaintiff. Plaintiff is awarded judgment in the amount of $353,053.00, plus interest and costs allowed by law. ..." 1,2

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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. Igor Volsky, "Another federal judge strikes down DOMA," Think Progress, 2012-JUN-06, at:
  2. B.A. Jones, "Edith Schlain Windsor v. The United States of America," Ruling by U.S. District Court, Southern District of New York, 2012-JUN-06, at:
  3. "Federal Court Declares 'Defense of Marriage Act' Unconstitutional," American Civil Liberties Association, 2012-JUN-06, at:
  4. Larry Neumeister, "NY judge: Anti-gay marriage law unconstitutional," Associated Press, 2012-JUN-06, at:
  5. Chris Palmer, "City Is Backing Widow’s Suit Over U.S. Law on Gay Marriage," The New York Times, 2012-JUN-20, 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 and 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2012-JUN-16
Latest update: 2012-NOV-26
Author: B.A. Robinson

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