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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-OCT: Reactions to the U.S. District Court
ruling. U.S. Court of Appeals for the 2nd Circuit
upholds lower court ruling: 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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Positive reactions to the District Court decision that section 3 of DOMA is unconstitutional:

The American Civil Liberties Union issued a press release quoting Edith Windsor saying:

"Thea and I shared our lives together for 44 years, and I miss her each and every day. It’s thrilling to have a court finally recognize how unfair it is for the government to have treated us as though we were strangers."

Brian Silva, executive director of Marriage Equality USA, said that the decision is:

"... another example of the trend of the judiciary continuing to see that treating same-sex couples differently than their heterosexual counterparts is not only wrong but goes against the laws of equality and justice here in the United States."

New York State Attorney General Eric T. Schneiderman called the decision "a major step forward in the fight for equality."

James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project, wrote:

“This decision adds to what has become an avalanche of decisions that DOMA can’t survive even the lowest level of scrutiny by the courts."

Roberta A. Kaplan, an attorney for Edith Windsor, said:

"Although we expect the [BLAG] attorneys for the House of Representatives to appeal today's decision, we are confident that it will be affirmed on appeal, and we hope that the court will do so expeditiously given that our client is 83 years old."

"BLAG" is an acronym for "Bipartisan Legal Advisory Group" of the United States House of Representatives. The term "bipartisan" is not really valid. Although the group is composed of three Republicans and two Democrats, every decision that the group makes ends up with a 3 to 2 vote with every Republican representative voting one way, and every Democratic representative voting the other. The degree of true bipartisanship is zero.

Melissa Goodman, senior staff attorney at New York Civil Liberties Union commented:

"Today’s decision is a victory for families and a victory for human rights. Now, all loving couples in our state can truly enjoy the dignity, respect, and legal rights that marriage provides."

This, of course, is a ridiculous statement, because it is inevitable that the ruling will be appealed by BLAG. No conclusions can be reached unless and until the case is ultimately ruled upon by the U.S. Supreme Court, unless that court refuses to hear the case.

Ellen Davis, spokeswoman for the Department of Justice, did not comment on the ruling. 1,2

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BLAG group appeals the ruling of the U.S. District Court for the Southern District of New York:

The BLAG attorneys appealed the the ruling to the United States Court of Appeals for the Second Circuit. The appeal may be a strategic error, because the Court of Appeals upheld the District Court's decision, as expected. This simply adds to the number of federal appeals courts which, with a multitude of district courts, have all found DOMA unconstitutional. In the face of unified opposition from the lower courts, it would be very difficult for the U.S. Supreme Court to find DOMA constitutional.

Still, no matter how many District Courts and Courts of Appeal rule that DOMA is unconstitutional, we expect that if an appeal is accepted by the U.S. Supreme Court that the latter court will rule with a 5 to 4 decision. All four of the conservative Justices will probably ruling in favor of DOMA's constitutionality, all four of the liberal Judges will probably find DOMA unconstitutional, and Justice Kennedy will cast the deciding vote.

Michael R. Bloomberg, mayor of New York City and Christine C. Quinn, the speaker of the City Council, announced on 2012-JUN-20 that they planned to file an amicus curia (legal brief) in support of the unconstitutionality of the DOMA law. Ms. Quinn, a lesbian who married her long-term partner in 2012-MAY, said:

"Sometimes it takes elected officials longer to get there than the American public. But I really believe the American public wants Edith to be treated the way that any [other] widow would be treated." 3

"Edith" is Edith Windsor, the plaintiff in the case of Windsor v. United States, She was married to Thea Clara Spyer who died in 2009. The DOMA law requires the Federal Government to treat them as "legal strangers" -- simply as two persons occupying the same house. Ms. Windsor was thus required by the IRS to pay hundreds of thousands of dollars in estate taxes because of the home that the married couple jointly shared. If Thea or Edith had been a man, Edith would not have had to pay anything in estate taxes for the house.

Judges Jacobs, Straub and Droney of the U.S. Court of Appeals for the Second Circuit heard the case on 2012-SEP-27.

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2012-OCT-18: Court of Appeals rules DOMA unconstitutional:

The United States Court of Appeals for the Second Circuit upheld the ruling of the lower federal court in a 2 to 1 decision. 4

According to the American Foundaton for Equal Rights (AFER), this is the 8th consecutive decision by a federal court that DOMA is unconstitutional. It is the third such decision by a federal court of appeals. To date 34 federal judges have ruled agasint DOMA.

This court concluded that:

"... Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional.

The term "equal protection" originally referred to the requirement of the 14th Amendment of the U.S. Constitution that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." It applied only to the states and not to the Federal Government. However, the "due process" guarantee in the Fifth Amendment has been subsequently interpreted by the courts as requiring the Federal Government to exhibit equal protection as well.

James Esseks, an attorney for the American Civil Liberties Union, said:

"It's fabulous news for same-sex couples in New York and other states."

He added that it was very important that the 2nd Circuit court recognized that when the government affirms the traditional definition of marriage as a union between one man and one woman, the courts will call it discrimination and therefore unconstitutional. 5

The Judges on the court wrote two opinions:

  • Chief Judge Dennis Jacobs wrote the opinion for the majority in which he determined that:

    • Plaintiff Edith Windsor has standing in the case.

    • DOMA should be analyzed using intermediate scrutiny review criteria (a.k.a. "exacting scrutiny" or "heightened scrutiny)."

    • That homosexuals as a group are a "quasi-suspect" class -- a group that is likely to be discriminated against.

    • That DOMA is unconstitutional when it is analyzed at this level of scrutiny and applied to homosexuals as a quasi-suspect class. 4

  • Circuit Judge Straub issued a separate opinion in which he dissents in part and concurs in part with the majority opinion. He agrees with much of the majority opinion. However, he dissents "... from the majority’s holding that DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee." He referred to an early lawsuit that attempted to legalize SSM in Minnesota. It was appealed to the U.S. Supreme Court in the early 1970's on the basis of equal protection. That court dismissed the appeal "... for want of a substantial federal question." At the time, the Supreme Court found nothing unconstitutional about that specific type of restriction which is identical to that found in the federal DOMA law.

    He also rejected the use of intermediate scrutiny review in place of the "... traditionally applicable rational basis standard of review." He wrote:

    "The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the offspring of that union. ... The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity. Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress. ... In enacting DOMA, therefore, Congress:

    1. maintained the status quo as to the federal definition of marriage for the purposes of federal programs and benefits; and

    2. recognized the right of any state to allow gays and lesbians to marry while, at the same time, permitting other states to adhere to their existing understandings of the institution of marriage. ..."

    "I conclude, therefore, that it was rational for Congress to prefer uniform substantive eligibility criteria for federal marital benefits for same-sex couples over 'uniform' deference to varying state criteria.

Circuit Court Judge Straub's full opinion covers many other aspects of the DOMA law. His 40 page opinion appears after Page 43 of the court ruling. 4

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Negative response to the Court of Appeals' decision:

On 2012-OCT-19, Brian Brown of the National Organization for Marriage (NOM) circulated an email message concerning the Court of Appeals' decision. NOM is the main national organization opposing marriage equality. He wrote:

"In an outrageous decision, the U.S. Court of Appeals for the 2nd Circuit has ruled that the Defense of Marriage Act (DOMA) violates the Constitution's equal protection clause! This is yet another example of judicial activism and elite judges imposing their views on the American people, and further demonstrates why it is imperative for the U.S. Supreme Court to grant review in the currently pending DOMA cases, as well as to the Proposition 8 case."

The term "elite judge" is often used by religious and social conservatives to refer to judges who rule in opposition to conservative beliefs.

A major part of what judges and justices do is to compare a law with a state or the federal Constitution, and determine whether they are in conflict. If they are in conflict, they are forced to rule that the law is unconstitutional. That is a major part of a judge's job description. Social and religious conservatives only refer to the process as "judicial activism" if the final ruling opposes conservative beliefs. Otherwise, the decision is praised.

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The next step:

The Bipartisan Legal Advisory Group (BLAG), had to decide which of three options to follow:

  1. Accept the ruling of the District Court and the 2nd. U.S. Court of Appeals that Section 3 of DOMA is unconstitutional. That would force the Federal Government to treat all legally married couples equally within the area served by this Court of Appeals: Connecticut, New York and Vermont. That was inconceivable, for two reasons:

    • If there is even a small possibility that DOMA could be found constitutional by the Supreme Court, then BLAG will want to proceed. Money is no concern, because BLAG can continue to draw on tax dollars to fight marriage inequality.

    • If BLAG allowed the Court of Appeals' decision to stand, loving committed same-sex married couples in other states would probably be encourgaged to initiate their own lawsuits.

  2. Ask the full Appeals Court to review the decision of their three-judge panel. This is unlikely because there are currently only five active judges on this Appeals Court. With three already having unanimously ruled that DOMA is unconstitutional, the outcome would be almost certain.

  3. Ask the U.S. Supreme Court (SCOTUS) to hear the case in the hope that it would overturn the Court of Appeals' decision. The Supreme Court can either accept cases for review, or let the lower court's ruling stand.

They chose to appeal the case to SCOTUS.

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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. "Federal Court Declares 'Defense of Marriage Act' Unconstitutional," American Civil Liberties Association, 2012-JUN-06, at:
  2. Larry Neumeister, "NY judge: Anti-gay marriage law unconstitutional," Associated Press, 2012-JUN-06, at:
  3. Chris Palmer, "City Is Backing Widow’s Suit Over U.S. Law on Gay Marriage," The New York Times, 2012-JUN-20, at:
  4. Court ruling in Windsor v.  United States, U.S. Court of Appeals for the Second Circuit, 2012-OCT-18, at:  This is a PDF file.
  5. Stoyan Zaimov, "NY Judge Rules Defense of Marriage Act Unconstitutional," Christian Post, 2012-OCT-20, at:

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Site navigation:

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

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

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Copyright © 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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